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INSANITY AND MENTAL
DEFICIENCY

In Relation to Legal Responsibility

INSANITY AND
MENTAL DEFICIENCY

IN RELATION TO

LEGAL RESPONSIBILITY

A Study in Psychological Jurisprudence

.i^t^-^""

WILLIAM of rf' COOK, LL.D. (Lond.)

0/ the Middle Temple , Barrister-at-Lazo ;

King Edward VII
Research Scholar of the Middle Tetnple.

Thesis approved for the Degree of Doctor of Laws in the
University of London.

LONDON :
GEORGE ROUTLEDGE & SONS, LIMITED.
NEW YORK: E. P. BUTTON & CO.

1921-

Dedicated to

HENRY FURSE KEENE, 0,B.E,,

Chief Officer of the Asylums and Mental Deficiency
Department of the London County Council,

FOREWORD

SIR JOHN MACDONELL, K.C.B., M.A., LL.D., F.B.A., late
Senior Master High Court of Justice, Emeritus Professor of
Comparative Law in the University of London.

Dr. Cook has the good fortune to treat of a subject
rarely dealt with as a whole. There are very many
decisions as to certain aspects of the civil responsibility
of lunatics ; their multitude and variety are per-
plexing. There is no want of text-books dealing with
parts of this subject. But, while criminal liability
has been studied as a whole, and an attempt, more or
less successful, has been made by lawyers to construct
a theory applicable to all offences, there has been no
satisfactory attempt, so far as English law is concerned,
to frame a theory of liability for torts and contracts
and testamentary capacity. Dr. Cook's work, the
result he tells us of an examination of upwards of two
hundred leading cases and of the study of the laws of
many foreign countries, is a novel and comprehensive
survey much needed, and may prepare the way for
a re-statement of our law in accordance with the
teaching of modern psychology. It is still true, as
Brett, L. J., remarked in 1879, that the law relating
to civil responsibility of lunatics stands upon a very
unsatisfactory footing.

It is not easy, and, indeed it may not be possible,
to devise a precise common criterion of responsibility
for delicts or torts and capacity for making contracts
or wills. In the case of torts the essentials^m^^e
much the same as in the case of crimes ; cmpa or
aolus must be a necessary element. The chief diffi-
culty is as to torts (if any) for which there is an

viii FOREWORD

absolute liability. Dr. Cook holds — and as to English
law he may be right — that even in the class of cases
of which Fletcher v, Rylands is the classical illustration,
a lunatic incapable of culpa or dolus would not be
liable. But under some systems of law it would be
otherwise. As to contracts, Dr. Cook gives an
interesting and luminous history of the remarkable
changes in judicial opinion, terminating in the decis-
ions in Molton v, Camroux and The Imperial Loan
Company v. Stone ^ which he acutely criticises and
declares to be wrong in principle. No less instructive
is his account of the law as to testamentary capacity,
as finally formulated in Banks v. Goodfellow ; a law
wisely elastic, affording large discretion to judges and
juries in dealing with the endless variety of cases of
mental deficiency which come before a Probate Court.
It has fallen to me to read much, both in English and
foreign legal literature, on the subject which Dr.
Cook treats, and I am greatly struck by the precision
of his observations and his comprehensive outlook.
His book will, I am convinced, educate professional
opinion, and help to reconcile the lawyer, the physician
and the psychologist.

PREFACE

SIR ROBERT ARMSTRONG-JONES, M.D., F.R^C.P., D.Sc,
C.B.E., J. P., D.L., F.S.A., Lecturer in Psychological Medicine
and Physician to out-patients St. Bartholomew's Hospital,
formerly Lt.-Col. R.A.M.C. and Consulting Physician to the

War Office.

Dr. Cook has written a most admirable treatise upon
the difficult question of Civil " responsibility." The
term responsibility is a purely legal one and means
liability to punishment, so that criminal responsibility
means liability to punishment for crime, whilst civil
responsibility refers to liability for torts and contracts.
The legal test of criminal liability is, according to
English Law72ie^knowl£dge_ofjdg|yt^^ but

this is not the test of insanity and a person must be
proved to be insane before such a test can be resorted
to in order to determine whether he is liable to punish-
ment. Such is the law in this country at present,
though not in some foreign systems of law. This haa.
led medical men to affirm that the legal test of right
and wrong is based upon an erroneous psychology,
viz., on the paramount influence of the reason rather
than the emotions and feelings and the_ will upon
conduct.

At present the only issue in regard to Criminal
|responsibility is, from the lawyer's standpoint, the
knowledge of right and wrong at the time the act was
committed, a view that many medical men assume
'to be an unjustifiable subservience to antiquated legal
metaphysics, whilst there is no common factor whereon
decisions may rest in regard to the capacity for
contract of persons who are of unsound mind.

X PREFACE

Dr. Cook in his text-book covers new ground for
he discusses logically and historically the parallel
question of Civil responsibility, and in this work he
deals with conditions which have been described as
resting upon " a very unsatisfactory footing." He
refers to the conflicting views of the medical and legal
professions upon the question of responsibility and
he bases his investigations not only upon the principles
of the Common Law and of Equity but also upon the
decisions of reported cases.

In the work which Dr. Cook has contributed he
traces the evolution of responsibility from remote
times. He has read widely and he writes accurately,
giving chapter and verse for the opinions of others,
and he arranges his matter methodically. His treatise
was accepted by the University of London for the
LL.D degree and is a valuable contribution to forensic
medicine. In view of the proposal by the Ministry
of Health that insane persons should not be certified
during the stage of early symptoms, this work will be
of great value to those who have to undertake their
care and control in the incipient stages of the disease,
as well as after the stage of certification. It will also
prove helpful as well as interesting and informing to
all medical men on the staffs of mental hospitals, as
also to the advanced reader in psychiatry and to those
graduates who are studying for the newly established
Diploma in Psychological Medicine.

TABLE OF STATUTES CITED

104

35 Hen. VIII. c. 20

2 & 3 Ed. VI. c. 8

51 Geo. III. c. 37 (Marriage of Lunatics Act, 181 1)
9 Geo. IV. c. 14, 8. 6 (Lord Tenterden'a Act) .
30 & 31 Vict. c. 6 (Metropolitan Poor Act, 1 867)
Act IX of 1872 (Indian Contract Act, 1872) .

36 & 37 Vict, c, 66 (Judicature Act, 1873)

37 & 38 Vict. c. 62 (Infants' Relief Act, 1874)
46 & 47 Vict. c. 38 (Criminal Lunatics Act, 1884)
53 & 54 Vict. c. 5 (Lunacy Act, 1890) . 94, 99
53 & 54 Vict. c. 39 (Partnership Act, 1890)
56 & 57 Vict* c. 71 (Sale of Goods Act, 1893)

3 & 4 Geo. 5, c. 28 (Mental Deficiency Act, 191 3) 3, 167 et seq.
9 & 10 Geo, 5, c. 21 (Ministry of Health Act, 1919) 167 et sgq.

12
12

42
170

87
168

100 et seq.

■ 98

89, 102

INDEX TO CASES CITED

Abrath v. North Eastern Railway Co.,

39
Allen V. Flood, 35
Amicable Society v. Bolland, 96
Anon (2 K. & J. 441), 100
Arthur V. Rokenham, 135
Ashby V. White, 32
A-G V. Parnther, 14, 152

Baker, v. Cartwright 116

Banks v. Goodfellow, 128, 129, 134,

i37> 139, 141, i45-7> 153
Ball V. Mannim, 64
Barry v. Cross key, 42
Barwick v, English Joint Stock Bank,

44
Baxter v. Earl of Portsmouth, 74,

76-8
Bayley v. Merrel, 44
Beall V. Smith, 98
Beavan v. M'Donnell, 154
Benson v. Benson, 152
Beverley's Case, 12, 71-3, 91
Billinghurst v. Vickers, 135
Birkin v. Wing, 91
Blachford v. Christian, 64
Blair, re a Lunatic, 153
Blundell v. Catterall, 32
Blyth V. Birmingham Water Works

Co., 45
Bootle V. Blundell, 136, 155, 156
Borrowdaile v. Hunter, 97
Boughton V. Knight, 131, 155
Boyse v. Rossborough, 131
Brennan v. Donaghy, 24, 26, 27, 30,

Brigham v. Fayerweather, 69
Bristow V. Eastman, 54, 55
Bromage v. Prosser, 35
Brouncker v. Brouncker, 135
Browne v. Joddrell, 76-8
Browning v. Reane, 105, 107
Burnard v. Haggis, 54, 55

Cannon v. Cannon, 106
Capital & Counties Bank v. Henty, 34
Cartwright v. Cartwright, 135, 143,
154, 155

Clement v. Rhodes, 158
Chandelor v. Lopus, 43
Citizens' Life Assurance Co. v.

Brown, 53, 54
Cole V. Robbins, 80
Cole V. Turner, 20
Combe's Case, 142
Cooke V. Midland G. W. R. of Ireland,

46, 47) 52, 56
Cowern v. Nield, 55
Cowper V. Harmer, 94
Cox V. English Scottish & Australian

Bank, 39
Cross V. Andrews, 25, 71
Curtis V. Curtis, 119

Daily Telegraph Newspaper Co. v.

McLaughlin, 88, 89
Dane v. Viscountess Kirkwall, 76, jy,

159

Da vies v. Mann, 51

Dean of St. Asaph's Case, 28

Den V. Vancleve, 149

Derry v. Peek, 41, 43, 45

Dew V. Clark and Clark, 132, 143, 145

Dibbins v. Dibbins, 99

Dickinson v. Blisset, 134

Drew v. Nunn, 80, 94, 102

Dublin, Wicklow & Wexford Railway
Co. v.Slattery, 51

Dufaur v. Professional Life Assur-
ance Co., 97

Durham v. Durham, 105, 106

Durling v. Loveland, 135

Dyce, re. v. Sombre, 157

Dyce, Sombre v. Prinsep, 14

Edgington v. Fitzmaurice, 42, 43
Elliot V. Gurr, 104
Elliot V. Ince, 54, 88, 95
Emmens v. Pottle, 19, 23, 37
Entick v. Carrington, 32
Evans, re., 153

Farmer v. Hunt, 33
Faulder v. Silk, 159
Ferguson v. Borrett, 154
Fletcher v. Rylands, 40

Xlll

XIV

INDEX TO CASES CITED

Foster v. Wheeler, 62
Frank v. Mainwaring, 92
Frost V. Beavan, 92

Gathercole v. Miall, 34
Gibson, in re., 81
Gore V. Gibson, 79
Grant v. Thompson, 73
Grecnslade v. Dare, 156
Greenwood v. Greenwood, 143
Grill T, General Iron Screw Collier
Co., 44

Hall V. Hall, 118

Hall V. Warren, 91, 93, 135, 159

Hanbury v. Hanbury, 19, 30, 118,

I zo, 121
Hancock v. Peaty, 104-7, ^^^5
Harford v. Morris, 104, 115
Harold v. Watney, 52
Harrii y. Berrall, 151
Harris v. Ingledew, 152
Harrison v. Rowan, 149
Harrod v. Harrod, 105
Harvey, R. v., 46, 159
Harwood v. Baker, 151
Haycraft v. Creasy, 43
Hay ward v. Hay ward, 116, 118
Heaven v. Pender, 45
Holmes V. Mather, 27, 48
Holyland, Ex parte, 14
Horn V. Anglo- Australian & Universal

Life Assurance Co., 96
Howard v. Earl of Digby, 78
Hunter v. Hunter, io6

Imperial Loan Co. v. Stone, 64, 75,
76, 79, 80, 82-5, 87-90, n6

Jenkins v. Morris, 64, 147, 148, 152,

J. in re. a Person of Unsound Mind,

103
Johnson v. Johnson, 121
Jones v. Lloyd, 99
Jones Y. Noy, 98
Jones T. White, 159

Kinleside v. Harrison, 136
Kirby t. Carr, 99
Kirk, T. Gregory, 33
Knight V. Young, 156

Latham v. R. Johnson & Nephew,

Ltd., 52, 56
Le Lievre v. Gould, 45
Lewis V. Clay, S4

Liddlc V. Easton's Trustees, 116
Light v. Light, 98
Lindenau v. Desborough, 96
Lovatt V. Tribe, 157
Lynch v. Nurdin, 52

M'Adam v. Walker, 156

M'Naughten's Case, i6o

Manby v. Scott, loi, 102

Mannin d. Ball v. Ball, ii^z

Mansfield's Case, 92

Martin v. Johnston, 157

Matthews v. Baxter, 79

Maund v. Monmouthshire Canal Co.,

McDonald v. Snelling, 48

Milne v. Bartlett, 99

Mitchell V. Kingham, 73

Mohori Bibee v. Dharmodas Ghose, 89

Molton v. Camroux, 72-6, 78, 79, 82,
85, 87, 95

Molyneux v. Natal Land & Coloni-
sation Co., 69, 88, 89

Montague v. Benedict, 102

Mordaunt v. Moncrieffe, 107, 119

Mordaunt v. Mordaunt, 2i

Mountain v. Bennet, 136

Neill v. Morley, 92

Nesbitt, re. an Alleged Lunatic, 158

Nichols v. Marsland, 41

Owen V. Davies, 93

Owston, in the Goods of, 134

Oxford, R. v., 156

Pangani, re., 94

Parmiter v. Coupland, 34

Pasley v. Freeman, 42

Pearce v. Chamberlain, 99

Pegge v. Skynner, 93

Peek v. Gurney, 42

Polhill V. Walter, 41

Portsmouth v. Portsmouth, 105, 107

Radford v. Radford, 117

Radley v. L. & N. W. Railway Co., 51

Read v. Leggard, 102

Rhodes, Rhodes v. Rhodes, re., 65, 80,

81, 100
Rich, in the Goods of, 134
Richardson v. Du Bois, loi
Roberts, Ex parte, 92
Rodd V. Lewis, 158
Roe V. Nix, 159
Rowlands v. Evans, 98
Ryder y. Wombwell, 103

INDEX TO CASES CITED

Sadler v. Lee, 98

Scott V. Shepherd, 47

Scagcr, In re., 55

Seaton v. Benedict, 102

Selby V. Jackson, 91

Sergeson v. Sealey, 159

Sivewright v. Sivewright, 148

Skelton v. L. & N. W. Railway Co., 51

Sloan Y. Mitchell, 150

Smce V. Smee, 147

Smith V. Chadwick, 43

Smith V. Tebbitt, 141, 142, 144, 147

Snook V. Watts, 159

Sprigge V. Sprigge, 151, 152

Stanley v. Powell, 23, 28, 30, 47, 48

Stedman v. Hart, 103

Stevens y. Vancleve, 150

Stewart v. Wyoming Ranche Co., 42

Stroud V. Marshall, 71

Thompson y. Leach, 72, j}^ 87, 88
Towart v. Sellers, 153
Turner v. Meyers, 85, 105, 107
Turner, Ex parte, 93

Ullce, re. The Nawab Nazim of
Bengal's Infants, 104

V^an AUt y. Hunter, 151

Vanderbcrgh v. Truax, 33

Walden, re. Ex 2'>nrle Bradbury, 158

Walker, in re, 90, 134

Walter, v. Sclfe 39

Waring v. Waring, 141, 142, 144, 145,

147, 152
Waters v. Taylor, 98
Weaver, in re., 81, loi
Weaver v. Ward, 21-3, 25, 28, 30
West Ham Union v. Pearson, 103
Wheeler v. Alderson, 135
White v. Driver, 155
White v. White, 119
Whitfield V. S. E. Railway Co., 53
Williams v. Hays, 25, 58
Williams v, Wcntworlh, 78, 8x
Winchester, Marquis of, 142
Windham, re., 156
Wood's Etsate, re. ; Davidson v.

Wood, 102
Wright V. Doe d. Tatham, 156
Wright V. Proud, 74

Yarborough v. Bank of England, 53
Yarrow v. Yarrow, 119
Yates v. Brown, 72, 80
Yonge V. Toynbee, 95

CONTENTS

■FoReWORD BY-SHV-JonN MACTXOT^ETtr- .

Preface by Sir Robert Armstrong- Jones
Index of Ca»e9 Ctted.

CHAP.

II
III

IV
V

^^VII

DeFIKIXXOH ANP-^LA9SIFICATI0N

Mental Deficiency in Relation to Tort

MbN rAfc-I>E^^K?f^Nf}Y"AN^&-TIIE LaW-O? CoN TRACT

Part I -.Generally ....

II- Lucid InteiY^s

Supervening Insanity and Contracts .

Ill

Lunacy and the Contract of Agency

Insanity and the Contract of Insurance

Insanity and the Contract of Partner-
ship ......

,, VII Lunatics and Necessaries. .

Mental Deficiency and Marriage

Supervening Insanity and Divorce .

Testamentary Capacity in Mental Deficiency .

Evidence of Insanity. .....

Appendix I Summary of Chief Powers and Duties of
Lunacy and Mental Deficiency Authorities in
England .......

Appendix II Suggestions for the Reform of Lunacy
and Mental Deficiency Administration

Index . . . . . . .

PAGE

vii

xiii

xix

61
61

94
96

97
100

104

118

128

152

165

176
179

xvu

INTRODUCTION

From official statistics recently published, it appears
that nearly one per cent, of the population of England
and Wales suffers either from insanity or from feeble-
mindedness. In the Admiaistrative County of London
alone out of a population of four and a half millions
it is officially estimated that over 40,000 persons arc
either insane or feebleminded. During the fifty years
immediately preceding the outbreak of the European
War the number of insane and feebleminded persons
in England had increased by 250 per cent, while the
general population had increased during the same
period by only 82 per cent.

Insanity — under which term is included all disorders
of the intellect of a grave character — ^has been little
discussed by lawyers with reference to its general
effect on responsibility ; on the contrary it has been
discussed almost exclusively with reference to the
particular effect of it on criminal responsibiHty only.
The object of this book, therefore, is to fill the gap
caused by the absence of modern works dealing with
the civil responsibility of lunatics and of the mentally I
defective.

The ideas current on the subject of insanity have
undergone appreciable modification of late years. In
fact, it is only in recent times that the subject has
received anything approaching the consideration
which it deserves. Attention was drawn to it over
fifty years ago by the horrible sufferings endured by
insane persons while in confinement in madhouses.
It used to be believed that every insane person was
dangerous, and that the only way of rendering him

xix

XX INTRODUCTION

harmless was by the application of forcible restraint.
The prevalent idea seems formerly to have been that
insane persons were regarded as being under some
sort of external impulse which compelled them to
commit acts against their will. It is now known that
with rare or temporary exceptions insane persons are
susceptible of influences very similar to those by which
other persons are affected. They can be made to feel
the effect of discipline, and can appreciate, in a very
considerable degree, the painfulness of reproof and
the pleasure of approbation. The consequence is that
to-day patients in asylums or mental hospitals are
scarcely ever placed under physical restraint. More-
over, the modern method of treatment of insanity
shows clearly that the moral and intellectual qualities
are hardly ever entirely effaced.

There is now opened up a new and difficult enquiry,
viz., whether or not an insane person is legally responsi-
ble for his acts in cases where there is sufficient evidence
to show that he does not know the nature of his acts.

While it is not the purpose of this book to discuss
the criminal responsibility of lunatics (inasmuch as
this subject has already been dealt with elsewhere)
It may be observed pertinently that it is unfortunate
that the law of insanity should have been to so great
a degree fashioned upon the practice in criminal
cases ; for this practice is rather the result of a series
of compromises than an application of principles
which are scientifically correct.

It is remarkable, moreover, that while the law
relating to the criminal responsibility of lunatics has
reached a comparatively advanced stage and that
definite rules have been laid down for the guidance of
Courts when dealing with cases in which the person
convicted of crime pleads insanity, no such precision
exists in regard to civil responsibility.

That the law relating to the civil responsibility of
lunatics is in an unsatisfactory state, was evident to

INTRODUCTION xxi

Brett, L. J., who, in delivering judgment in the case
of Drew v. Nunn in 1879 stated that he found that
the law relating to the civil responsibility of lunatics
" stood upon a very unsatisfactory footing." (a) The
learned Recorder of Bristol (Mr. W. Blake Odgers,
K.C.) stated at an interview in 191 3 that the law as
to a lunatic's liability for tort and capacity to enter
into contracts rested upon very insecure foundation
and that he was of opinion that careful research would
reveal the fact that several of the modern cases were
wrongly decided.

In view of the unsatisfactorv state of the law

referred to, the writer has attempted in the following
pages to set out a statement of the law (a) as declared
by Statute or by Courts of Justice, and (b) as, in the
opinion of the writer, it ought to have been or should
be declared to be, having regard to (i) reported cases :
and (ii) the principles of the Common Law and of
Equity.

Upwards of two hundred leading cases have been
considered, the authorities referred to have been
carefully examined, and the law of many other coun-
tries has been ascertained for comparative purposes —
where this has been deemed desirable and useful — in
dealing with some of the difficult problems which
have presented themselves for solution.

The preparation of this work would seem to be
rendered desirable in view of the following facts : —

(i) The present indefinite and unsatisfactory state
of the law relating to the civil responsibility
of lunatics.

(ii) The absence of any modern work in which the
subject is adequately treated.

(iii) The number of the insane population of Eng-
land (that is to say, the total number of luna-
tics, idiots, imbeciles and all feebleminded

(a) 4 Q.B.D., p. 665.

xxii INTRODUCTION

persons, whether legally recognised as such or
not), has increased steadily up to the year
1914 and that, although the rate of increase has
not been so marked during the war, there
appears to be no immediate prospect of any
diminution of the large number of persons who
occupy a peculiar position in the eye of the
law, in the interest of whom and of the public
the law should be clearly and definitely stated.

The attention of Parliament was directed some time
ago to the necessity for dealing with the problem of
the mentally unfit, and the result has been the passing
of the Mental Deficiency Act, 191 3 by which Statute
elaborate machinery is set up with the object of taking
steps for the care and detention of feebleminded
persons other than lunatics in order to prevent such
persons from propagating their kind and for the
prevention of the many abuses to which feeble-
mindedness lends itself, both in regard to the sufferers
themselves, to their relatives, and to the public.

In the same manner as the object of the Mental
Deficiency Act, 191 3, was to place the law relating to
the care and control of feebleminded persons upon an
efficient basis, so the object of this work is to examine
the ground upon which the law as to the civil responsi-
bility of lunatics and of the mentally defective rests,
and to show that, however indefinite and contra-
dictory the law may appear to be, the underlying
principles thereof are sound and reasonable.

In the chapter on Definition and Classification an
attempt is made to explain and to reduce into order
the existing confused and confusing mass of technical
terms relating to the insane and to the mentally
deficient.

Inasmuch as in English legal history the law relating
to tort was developed earlier than that relating to
contract, the question of a lunatic's responsibility for

INTRODUCTION xxili

his torts is dealt with in an earher chapter than that
in which his capacity to enter into contractual relations
is considered. ^__^^

A chapter (Mental Deficiency in Relation to Tort) A
has been devoted to an examination of the relevant
authorities with the object of giving a satisfactory
answer to the question — Is a lunatic who is so insane
as not to know what he is doing, responsible for his
wrongful acts of omission and of commission ? Con-
sideration is given also to the anomalous proposition
(to be found in many of the Common Law Text I
Books) that while a lunatic escapes criminal liability, /
he is said still to be civilly liable for his torts. ^^^

In a chapter on Mental Deficiency and Contract,',
the law upon the subject as laid down by the Courts
upon various occasions has been carefully considered
and examined, as a result of which some conclusions
are drawn which it is believed are consistent with
principle and with authority. In the same chapter
an attempt has been made to ascertain the principles
upon which rests the incapacity of persons of unsound
mind, and conclusions are arrived at which tend to
mitigate the anomalous declaration that while a
lunatic cannot exercise the franchise — on the ground
that he has no mind — he is nevertheless said to be
liable for his alleged contracts, unless it can be proved
that the other party knew of his insanity. -"^

Two chapters have been devoted to a consideration
of the law relating to husband and wife as affected
by the unsoundness of mind of one of the parties, and
the laws of many foreign countries have been set out
for comparative purposes.

The important question of the effect of unsoundness
of mind upon testamentary capacity has been ex-
haustively considered, and an attempt has been made
to state the existing law clearly and succinctly.
The grounds for the repudiation of the old doc-
trine of the oneness and indivisibility of the mind

xxiv INTRODUCTION

and consequent absence of testamentary capacity as
laid down in Waring v. Waring (a) are carefully con-
sidered and the modern cases referred to.

The chapter on Evidence contains a statement of the
respective views held by lawyers and by medical men
on the difficult question of the nature of the test
which should be applied in order to determine the
responsibility which should be attached in respect
of the acts of a person alleged to be of unsound
mind. The legal position of the expert medical
witness also is considered in this chapter.

In an appendix is given a summary of the chief
powers and duties of the various judicial and public
authorities upon which duties have been placed and
powers conferred by the various Statutes relating to
lunatics and to the feebleminded.

My thanks are due and are gladly acknowledged
to Sir Robert Armstrong-Jones for many valuable
suggestions on the difficult subject of classification
and nomenclature, to my formxcr colleague, Mr. J. S.
Wessen of the Asylums and Mental Deficiency Depart-
ment of the London County Council who kindly read
the proof sheets, and to others of my former colleagues
through whose help I have been enabled to avoid
many technical errors relating to administrative law
and practice. I am indebted to Mr. Philip E. Sumner
of the University of London for compiling the Index.

In conclusion, I have to thank the Senate of the
University of London, by whose assistance the publi-
cation of this book has been made easier to me.

W. G.H.C.

I Essex Court, April, 192 1.

(a) Infra.

INSANITY AND
MENTAL DEFICIENCY

CHAPTER I

DEFINITION AND CLASSIFICATION

The difficulty of defining precisely the nature of
insanity or of stating succinctly in what insanity con-
sists has neen recognised, not only by every writer
upon the subject, but by all — ^whether judges, legis-
lators, or medical men — who have had to deal prac-
tically with the insane. A high legal authority — Lord
Blackburn — when giving evidence before a Select
Committee of the House of Commons some thirty
years ago said : — " I have read every definition
which I could meet with, and never was satisfied with
one of them, and I have endeavoured in vain to make
one satisfactory to myself. I verily believe that it
is not in human power to do it."

Knowledge of the characteristics of insanity has,
however, increased appreciably during the past
thirty years, so that it is now possible to give a
definition of insanity which is both comprehensive
and satisfactory.

In comparing the legal with the medical definition
of insanity, it will be observed that there is a wide
difference of opinion between the legal view and
the medical view as to the precise nature of insanity.
It must be remembered, however, that lawyers and
medical men approach the subject each from a different
point of view : for this reason the lawyer is no more
entitled to assert that the medical test of insanitv

2 DEFINITION AND CLASSIFICATION

is impracticable than the medical man is justified
in stating that the legal test is inadequate.

For the purposes of this treatise the words " in-
sanity " and " lunacy " are interchangeable terms
and are used throughout to denote the same thing,
i.e., unsoundness of mind.

Medical Definition of Insanity

According to an eminent specialist in mental
diseases (a), insanity is disorder of brain producing
disorder of mind ; in other words, it is a disorder
of the supreme nerve centres of the brain — the special
organs of mind — producing derangement of thought,
feeling and action, together or separately, of such
degree or kind as to incapacitate the individual for
the relations of life (i.e., the social relations of life).

There are, however, different forms of insanity
known to medical men, and while in some of these
forms the mind is completely and permanently
disordered, in others the mind is only partially or
intermittentlv disordered. It should be stated at
the outset that insanity does not mean one disease
to be diagnosed by a single characteristic, but is a
group of symptoms, i.e., a symptom-complex, each
of which has its more or less characteristic features,
its special course and more or less special cause, and
its particular termination.

Although the law is not concerned with the causes
of insanity, a classification of the main characteristics
which differentiate each of the chief forms of insanity
will be of assistance in estimating the probable effect
of insanity upon the question of the civil responsibil-
ity or capacity of persons who are proved to be of
unsound mind (b).

(a) Dr. Henry Maudsley, Responsibility in Mental Disease, p. i^.

(b) Note — With the exception of those cases in which modern scientific
research has revealed the need for a different or more precise sub-division,
the classification adopted by Dr. Maudsley has been followed throughout
this treatise.

DEFINITION AND CLASSIFICATION 3

Unsoundness of mind or feeblemindedness is com-
monly divided into two great classes : —

(i) where there is absence or weakness of mind
(amentia) : and

(ii) where the mind which once was normal has
subsequently become deranged (dementia).

Within the first class are included idiots, imbeciles
and all other mentally defective and feeble-minded
persons ; while the second class comprises lunatics
of all grades.

Idiocy is a defect of mind which is either congenital,
or due to causes operating during the first few years
of life before there has been a development of the
mental faculties. Idiots are not only incapable of
earning their own living, but they are incapable of
preserving themselves from the risks of physical
harm which are present in their ordinary physical
environment. They are unable to adapt themselves
to the simplest environment, and this extreme degree
of incapacity constitutes idiocy.

Imbecility exists where the defect of mind is so
great that the sufferer is unable to earn his own living.
Imbeciles may be capable of executing simple work
under supervision, but their services have not suffi-
cient market value to secure employment at such
remuneration as enables them to support themselves.
They are unable, without assistance, to adapt them-
selves to their general environment because their
intellectual powers are not sufficiently developed. It
is this degree of deficiency of development which
constitutes imbecility. The line of demarcation be-
tween the dull or weak-minded man and the imbecile
is precisely the ability to earn a living.

Morons are the highest grade of feeble-minded
persons : they are mentally defective adults whose

/\ DEFINITION AND CLASSIFICATION

intelligence is equal to that of a normal child between
the ages of seven and twelve years (a).

For the purposes of public administration, idiots,
imbeciles, feeble-minded persons, and moral imbeciles
have been defined in the Mental Deficiency Act, 191 3
as follows : —

(i) Idiots ; that is to say, persons so deeply defective
in mind from birth or from an early age as to
be unable to guard themselves against com-
mon physical dangers.

(ii) Imbeciles ; that is to say, persons in whose
case there exists from birth or from an early
age mental defectiveness not amounting to
idiocy, yet so pronounced that they are in-
capable of managing themselves or their
affairs.

(iii) Feebleminded persons ; that is to say, persons
in whose case there exists from birth, or from
any early age mental defectiveness not amount-
ing to imbecility, yet so pronounced that they
require care, supervision or control for their
own protection.

(iv) Moral Imbeciles; that is to say, persons who
from an early age display some permanent
mental defect coupled with strong vicious or
criminal propensities on which punishment has
had little or no deterrent effect.

In this connexion Dr. A. F. Tredgold, says that
it is significant that the nature of the test of mental
deficiency which is applied both by the Legislature
and by the medical profession is the same, i.e., social
incapacity (b).

(a) This term originated in America and has now been adopted in England,
(b) At a lecture delivered at the University of London on i8th October, 1920.

DEFINITION AND CLASSIFICATION 5

The medical profession regards idiots as entirely
irresponsible for their acts (a), and inasmuch as
imbeciles as well as idiots cannot through deep defect
of mind earn their own living, it would seem that
they also are regarded by medical authorities as
wholly irresponsible for their acts. It would appear
that medical men regard idiots and imbeciles as
irresponsible for their acts by the analogy which
exists so far as regards state of mind between them
and infants of tender years.

The Common Law seems to have proceeded on
similar lines, inasmuch as neither infants of tender
years nor idiots nor imbeciles have ever been held
responsible for their acts.

Inasmuch, therefore, as the purpose of this treatise
is to deal chiefly with the effect of insanity — in all its
multifarious forms — upon the question of legal re-
sponsibility, the remainder of this chapter will be
devoted to a consideration of the various species of
insanity into which lunacy (i.e., the second class
referred to on p. 3 above) has been sub-divided.

The manifold varieties of lunacy or insanity — as
distinguished from idiocy and imbecility — may, with
certain exceptions to be mentioned later, be arranged
into three main divisions according as there is de-
rangement (i) of thought ; (ii) of the affections or
feelings ; and (iii) of the will. The first division
comprises all those cases in which there is insanity
of thought, or insanity with delusion, and may be
described as Intellectual or Ideational Insanity : the
second division comprises all those cases in which,
without delusion or incoherence, there is derangement
of feeling or of the emotions, and may properly be
described as Affective Insanity : and the third division
comprises all those cases in which there is derange-

(a) Dr. Henry Maudsley, Responsibility in Mental Disease^ pp. 6-8.

6 DEFINITION AND CLASSIFICATION .

ment of the will as evidenced in the group of the
so-called Aboulic cases, such as those of impulse,
obsessions and imperative ideas.

Examination of the cases of Intellectual Insanity
shows that there are some cases in which the derange-
ment of thought is general : and others in which the
derangement of thought appears to be limited to one
subject, or to a particular group of ideas, while the
understanding in other matters is tolerably clear.
The former cases are included under the class of
what is termed General Mania, which mav be acute or
chronic, and the latter under the class of Partial
Mania which is always of a chronic nature.

General Mania, In this case the general de-
rangement is unequivocal and, for this reason, it is
seldom, if ever, that any question arises or is likely
to arise in regard to the responsibility of a person
afflicted with this form of insanity.

Partial Mania, The chief characteristic of Partial
Mania is that the patient entertains either one delusion
only, or one group of delusions only, apart from which
his conduct may be normal. This is the most difficult
form of insanity with which the law has to deal,
inasmuch as it is extremely difficult, even for an
asylum physician, to state positively that the disease
of the brain which results in the delusion has or has
not affected the patient's mind in other directions.
The difficulty appears to lie in the fact that, inasmuch
as conduct is the only satisfactory test of insanity,
the materials whereby the extent of the insanity may
be ascertained are subject to much limitation.

Dementia, When any of the common forms of in-
sanity (^.g., general or partial mania), has continued
for a considerable time without any amelioration, the
mind frequently becomes very much weakened, and
the patient, having passed through degrees of mental
derangement, lapses finally into a condition known as
dementia, H^?^ the min4 has been destroyed by

DEFINITION AND CLASSIFICATION 7

disease, and the destruction may be more or less
general and complete : in the worst cases demented
patients possess as little intelligence as the complete
idiot, from whom they differ only in having lost that
which the idiot never possessed.

Affective Insanity, Included under this division
are the affective states of exaltation and of depression
(melancholia), which when present in excess are
pathological and not physiological.

Insanity where there is derangement of the will is
divided into two sub-classes, viz., (i) Impulsive Insan-
ity and (ii) Moral Insanity.

Impulsive Insanity. The main characteristic of this
form of insanity is that, although the patient may be
entirely free from delusion, he may be seized with an
impulse which drives him, in spite of reason and
against his will, to commit an act which involves a
serious breach of the law. Suicide, and homicide,
with its various attendants, {e.g., assaults upon un-
protected persons), are the most common tendencies
of persons suffering from impulsive insanity. Such
persons have been known to have committed murder,
arson, damage to property, etc., without having any
ill-feeling whatsoever against the person whom they
injure, or without having any purpose to serve by
what they do.

The importance of ascertaining in a case of an
action of tort, for example, whether or not the de-
fendant was suffering from impulsive insanity, can-
not be exaggerated.

Moral Insanity. In this form of insanity, as in
impulsive insanity, there is no delusion, but the
symptoms are chiefly those of disorder of the moral
sentiments. Persons suffering from this form of in-
sanity may engage in projects of social or political
reform, or launch into commercial speculations quite
foreign to their natural character and habits. Such
patients become disregardful of truth and not infre-

8 DEFINITION AND CLASSIFICATION

quently display a complete indifference to the feelings
of those who are related to them.

In addition to the varieties referred to above,
there are also three other, common types of insanity
which are not included under either of the three
main divisions mentioned on p. 5, viz., (i) Epileptic
Insanity, (ii) Senile Dementia, and (iii) General paral-
ysis of the Insane.

(i) Epileptic Insanity. There is a very close con-
nexion between epilepsy and insanity. Dr. Mauds-
ley states that an old author, Zacchias, declared that
every epileptic ought to be regarded as irresponsible
for acts committed by him within three days before
or after an epileptic attack, and Dr. Maudsley him-
self says that it is an undoubted effect of epilepsy
in some instances to produce mental derangement of
a furious kind (a). This form of insanity manifests
itself chiefly by irritability, moroseness, and perver-
sion of character, with periodical exacerbations of
excitement, in which criminal or tortious acts may
be perpetrated without the patient's being able to
control himself in any degree.

(ii) Senile Dementia. The characteristics of this
form of insanity may be stated shortly to be the
symptoms which mark the natural decay of mind in
old age. There is first the loss of memory, then im-
pairment of perception, incoherent talk, incapacity of
comprehension, until, finally, there is complete mental
decay.

Patients suffering from this form of insanity in its
early stages occasionally exhibit extraordinary ac-
tivity in business, making sales or investments of an
unusual character : in addition, thev are commonlv
impatient of advice or of opposition and resent all
interference or control. The effect of insanity of this
sort upon the mind of the sufferer may be of great
importance in determining whether or not the defen-

(a) ResponsibilUy in Mental Disease^ p. 228.

DEFINITION AND CLASSIFICATION 9

dant to an action upon an alleged contract had the
capacity to enter into a valid agreement.

(iii) General Paralysis of the Insane, There is one
striking foFm of insanity in which mental symptoms
of a tolerably uniform character are accompanied by
symptoms of gradually increasing paralysis of the
muscular system, and which runs a definite course to
a fatal termination ; it is usual, therefore, to make of it
a special class under the name of General Paralysis of
the Insane, This is a departure from the principle of
classifying insanity according to its prominent mental
features ; the bodily symptoms which accompany
the mental derangement are taken into account, and
made the basis of the nomenclature.

This form of insanity exhibits not only the same
kind of elevation of mind but the same thickness of
articulation, the same unsteadiness in the gait, the
same clumsy inefficiency of the digital movements
which characterise drunkenness.

In general paralysis, as the enhancement of the
nervous tension is so much more exaggerated, the
vagaries of self-consciousness are much more extrava-
gant. While the drunken man will content himself
with the claim to be considered the strongest man in
the room, the general paralytic considers himself the
strongest man on earth (a).

In conditions of exaltation there generally exist
delusions of self combined with delusions of environ-
ment. The general paralytic believes not only, in
spite of his manifest infirmities, that he is " all right,"
in splendid health and capable of boundless activity ;
but also, in spite of the comparatively sordid sur-
roundings of a public asylum, he believes himself to
be in a palace, and that he is the possessor of untold
wealth. His bearing and demeanour are eager and

(a) 67. Sir George Savage's words : — " To the alcoholic all things are
possible."

lo DEFINITION AND CLASSIFICATION

restless and he is constantly in motion. He meddles
with everything with which he comes into contact,
and writes innumerable and unnecessary letters.

From the foregoing considerations it will be seen
that a person suffering from general paralysis of the
insane may be expected to commit unlawful acts or to
attempt to enter into ridiculous contracts, as a con-
sequence of the state of his mind.

Drunkefiness and Insanity. Dr. Charles Mercier
says that " there is no form of insanity that may not
be simulated by a case of drunkenness : and when it
is not known, from other sources of information, that
these manifestations are due to drink, no expert in the
world, however skilful, could distinguish between
the insanity that is due to alcoholic poisoning and the
insanity that is due to other causes." (a).

Insanity from which a person is suffering may be the
transient insanity of drunkenness or the permanent
insanity of general paralysis ; but if the manifes-
tations of drunkenness be identical with those of in-
sanity, it might with reason be stated that the drunkard
so long as he is drunk, is mad. In other words,
it is strictly and literally true that when, and in so
far as, a man is intoxicated by alcohol, then and to
that extent, he is insane. Yet, inasmuch as the cause
is obvious, the condition temporary, and as the mani-
festations of the insanity as a rule differ somewhat
from those in insanity due to other causes, the insanity
due to acute alcoholic poisoning is not usually regarded
as lunacy. It is called by a different name, and is
considered a different thing, but in essential nature
the two are identical.

Dr. Charles Mercier refers to the similarity in regard
to effect upon the mind between drunkenness and
insanity in the following words : — *' That the resem-
blance of the manifestations of drunkenness to those
of insanity means a real identity in nature between

(a) Sanity and Insanity j p. 319.

DEFINITION AND CLASSIFICATION ir

the two conditions, and is not merely a far-fetched
analogical resemblance, is shown by two circumstances;
first, that there is a well-marked and distinct variety
of insanity which reproduces with minute faithfulness
the characteristic signs that ordinary cases of drunk-
enness display ; and second, that every form of in-
sanity is reproduced with accurate simulation by some
case of drunkenness." (a).

Old English Definitions.

Throughout the history of English Law there has
been a striking lack of consistency and of compre-
hensiveness in the legal terminology of lunacy. The
various terms which have been used to indicate in-
sanity have not hitherto been used in any uniform
sense and it is remarkable that there exists no nomen-
clature which distinguishes civil incapacity of lunatics
from criminal incapacity.

According to Sir E. Coke (b), Littleton's explanation
of the expression " non compos mentis, ^^ (which Coke
claimed to be " most sure and legall ") is that it in-
cludes all persons who were '' of no sound memory."
He repudiates as indefinite and unsatisfactory the
terms, amens, demens, furiosus, lunaticus, faiuiis and
stultus. He divides persons non compos mentis into
four classes : —

(i) Ideota, who from his nativity, by a perpetual
infirmity, is non compos mentis,

(ii) He who, by sickness, grief, or other accident,
wholly loses his memory and understanding.

(iii) A lunatic who sometimes has his under-
standing and sometimes not, aliquando gaudet
lucidis intervallis : and therefore he is called
7ion compos mentis, so long as he has not un-
derstanding.

(a) Sanity and Insanity, p. 3 19, (b) Co. Lit., 246.

12 DEFINITION AND CLASSIFICATION

(iv) He who, by his own vicious act, for a time
deprives himself of his memory and under-
standing, as he who is drunk ; i.e,, volun-
tarius dcemon.

In Beverley's case (a) the definition is more definite
and comprehensive. It was held in that case that a
man non compos mentis was " he who was once of good
and sound memory, and by the visitation of God has
lost it."

The term " lunatic " appears on the Statute Book
for the first time in the reign of Henry VIII. (33
Hen. 8. C.20) and is then used definitively to denote
persons who have become insane since birth.

While in the Statute of Henry VIII above referred
to the word '* lunacy " is used as an alternative for
'' madness"; in 2 and 3 Edward 6, c.8., the words
" lunatic " and " idiot " are used indiscriminately.

Both Sir E. Coke in Beverley's case and Sir Matthew
Hale in his " Pleas of the Crown " use the term
" lunatic " as including persons whose insanity is
temporary or intermittent. Hale, whose definition
agrees in the main with Coke's, describes dementia,
or insanity, as being (i) idiocy or fatuity a nativitate
vel dementia naturalis ; (ii) dementia accidentalis vel
adventitia, which may be classified as (l) partial ; either

(a) in respect of things quoad hoc vel illud insanire ; or

(b) in respect of degrees : and (2) total. This second
class is further divided by him into (i) permanent or
fixed, when the insanity is called phrenesis, and (ii)
interpolated, by certain periods or vicissitudes, when
it is called lunacy. Hale includes within his second
class of insanity also a further classification, viz.,
(i) when the mental defect is more dangerous and
pernicious, commonly called furor, rabies, mania;
and (ii) less dangerous and pernicious unsoundness of

(a) 4 Coke, 123.

DEFINITION AND CLASSIFICATION 13

mind, as in deep delirium stupor ; (iii) dementia
affectata, i.e., drunkenness (a).

Staundford reproduces Fitzherbert's definition as
follows : — " And the manner of the tryall of hym to
bee a foole naturall appears in the sayd Natura
Brevium, fol. 233. That is to say, yf hee cannot tell
to twenty pence or tell his age, or who was his father
or mother, or such lyke thynges, thereby it may
appear that hee hath no kynd of understanding, in
that that is eyther for his profite or dammage. But
if hee bee learned or apt to learne then is he no ideot,
as Maister Fitzherbert there thinkes and Greene
sayth in Saver de default that if hee bee able to beget
eyther sonne or daughter hee is no foole " (b). To
these Swinburne adds '' that if one have so much
understanding as he can measure a yard of cloth, or
rightly name the dayes in the weeke, hee that can so
doe shall not bee accounted an ideot or naturall
foole " (c).

According to Sir William Blackstone the distinc-
tion between an idiot and a lunatic was that the law
presumed an idiot to be incapable during his life of
obtaining a complete degree of understanding so as to
enable him to govern himself or his estate, while a
lunatic was presumed to be capable of recovering the
reason which he once possessed (d).

Lucid Intervals.

In many recent cases the determination of the legal
capacity or civil responsibility of an alleged lunatic
has depended upon whether or not the act or omission
in question took place either while the alleged lunatic
was suffering from partial insanity or during a lucid
interval. It is important, therefore, to state in this
chapter what is understood in law by the condition

(a) I Hale, P.O. 29. (b) Staundf. Pr. Reg., 34.

14 DEFINITION AND CLASSIFICATlOISf

known as a lucid interval, especially also as this con-'
dition is commonly experienced by lunatics.

In the first place, it is interesting to note that
according to Sir Matthew Hale, a lunatic who was
alleged to have performed any act, whether lawful
(e.g., a contract), or unlawful {e.g., a tort) and was
known and proved to have lucida intervalla was pre-
sumed to have performed the act in one of those
intervals (a).

Lord Thurlow said in A.~G. v. Parnther that by a
lucid interval he understood " not a cooler moment,
not an abatement of pain or of violence, or of a higher
state of torture, not a mind relieved from excessive
pressure, but an interval in which the mind having
thrown off the disease, has recovered its general
habit " (b).

The above statement of Lord Thurlow is qualified
(i) by the dictum of Lord Eldon who, in Ex parte Holy-
land (c) said that a lucid interval is not necessarily a
complete restoration to mental vigour enjoyed ; and
(ii) by the dictum of Sir John Dodson, w^ho said that it
is not merely the cessation or suppression of the
symptoms of insanity (Dyce, Sombre v. Prinsep (d)).

Roman Law Conception of Insanity.

The Roman Law seems to have made a distinction
— though not very clearly marked — between persons
of unsound mind : thus, the dangerous (furiosi) were
those in whose case the insanity was more or less
general ; the demented (mente capti) appear to be
those lunatics who were suffering from partial in-
sanity ; also the imbecile (dementes) and the prodigal
(prodigi). The system of curatorship was intended
for these cases of mental defect (e).

According to Sohm, the furiosus or person of un-

(a) Hale P.O., i, 30. (b) 3 Bro. CO. 441.

(e) Ortolan, Roman Law, p. 603.

DEFINITION AND CLASSIFICATION 15

sound mind was incapacitated from all juristic acts.
He was also incapable of any delictual liability, and
he could not make a will or witness a will (a).

Modern Legal Definition.

A lunatic is a person of unsound mind, (not being
an idiot or an imbecile) who has either (i) been found
to be a person of unsound mind by judicial inquisition,
or (ii) been medically certified to be of unsound mind,
and who is eithec incapable of managing his own
affairs or is dangerous to himself or to others.

An eminent jurist, the late Mr. Justice Stephen,
defined insanity as '' a state in which one or more of
the mental functions are performed in an abnormal
manner, or are not performed at all by reason of some
disease of the brain or nervous system " (b).

While the Legislature has found it necessary in
Statutes relating to the administration of the estates
of lunatics and to the care and treatment of lunatics
in institutions to define what persons shall be deemed
to be subject to the provisions of a particular enact-
ment, it has been considered inadvisable to incor-
porate such definitions in this treatise inasmuch as
they are particular definitions and, as such, have no
general application to the law relating to the responsi-
bility of lunatics.

It would appear that so far as regards capacity in
contract and liability in tort — in fact, in all branches
of civil responsibility — the law recognises no difference
between the various terms used to indicate unsound-
ness of mind : moreover, in many works on the Com-
mon Law all persons of unsound mind are regarded as
lunatics (vide the section on Medical Definition
above).

Although the difference between the various forms

(a) Insts. of Roman Law, pp. 141, 143, 448 and 456.

(b) Steph. Hist, of Grim. Law in England, Vol. ii., p. 130.

i6 DEFINITION AND CLASSIFICATION

of mental unsoundness is important for purposes of
administration or for the treatment of the ever-
increasing multitude of feeble-minded persons, the
difference between a lunatic so found by inquisition
and a person medically certified to be of unsound
mind in accordance with the provisions of the Lunacy
Acts is important in view of certain technical distinc-
tions which need not be referred to here, the chief
difference between a lunatic so found by inquisition
and one not so found being that the latter has no
'' committee " to manage his affairs during the period
of insanity.

CHAPTER II

MENTAL DEFICIENCY IN RELATION TO

TORT

For historical reasons, the law relating to the torts
of lunatics has been dealt with in this treatise before
that relating to the contracts of lunatics, inasmuch as
the Common Law principles of tort were evolved
earlier than those of contract.

In the development of a legal system its rules come
into existence with little direct reference to theory,
and the various component parts of the system are
framed, by slow degrees, to meet practical require-
ments as they arise. Nevertheless, legal instinct
generally works upon a symmetrical plan : the rules
of the Common Law of England, for example, usually
possess a remarkable consistency so far as they relate
to any one legal topic. Moreover, a stage is always
reached — sooner or later — -when legal minds turn
naturally to the task of discovering the broad prin-
ciples which underlie the practical rules of the law,
and of thus evolving from empirical knowledge a
conception of legal principle which is the only guide
for the expansion of existing rules, for their appli-
cation to novel circumstances and to changed con-
ditions and which forms the only logical foundation for
sound legal knowledge.

Notwithstanding this general statement, all at-
tempts to find a common element in every act and
omission which the law denominates tort have failed
owing to the fact that careful examination of each of
the several torts known to the Common Law shows
that no such common element exists. No attempt,

1 8 MENTAL DEFICIENCY

therefore, is made in this treatise to frame a compre-
hensive definition of tort. Furthermore, inasmuch as
the purpose of this chapter is to throw some light
upon the problem of whether a lunatic is answerable
and, if so, to what extent, for torts committed during
his insanity, it has been found necessary, with a view
to adequate treatment of the subject, to examine in
detail each of the several kinds of iniuria known to the
Common Law.

So far as can be ascertained by reference to the
authorities up to and including the fifteenth century
insanity was not regarded by the Common Law as a
ground for mitigating liability for the payment of
compensation to a person who had been injured in
body or estate by a lunatic. Fitzherbert quotes a case
which was decided in 13 15 from which it would appear
that insanity did not excuse a man even for crimes
committed by him during an attack of lunacy. In the
case referred to the man died after he had recovered
his reason, as the result of wounds self-inflicted while
insane, and his chattels were confiscated as though he
had been in his senses at the time when he committed
the felony. It is interesting, therefore, to find that
Sir Matthew Hale, writing in 1787, explains that
lunacy did not excuse a man from liability to pay
damages in respect of a civil wrong committed by him
" because such a recompense is not by way of penalty,
but a satisfaction for damage done to the party " (a).

Bacon, writing circ. 161 8, says in his explanation of
Maxim XII (Receditur a placitis juris, potius iniurice
et delicta maneant imfunita) that " a lunatic can have
neither will nor malice " (b).

It would appear from Bacon's statement, that there
was in the corpus of the Common Law a principle by
which a lunatic was regarded as not being wholly
responsible for torts committed by him during insanity.

(a) Hale, P.C. I. 15, 16.

(b) Bacon, Maxims of the Law XII.

IN RELATION TO TORT 19

The leading text-books on the law of torts show
that there is a lack of authority as to the liability
of a lunatic for his torts (a). In view of this fact
attention is drawn to a statement of the law of England
upon this matter which was made by Lord Esher
(M.R.) in 1892 when in H anbury v. H anbury (b) the
learned Judge said that he was " prepared to lay
down as the law of England that whenever a person
does an act which is either a criminal or a culpable
act, which act, if done by a person with a perfect
mind, would make him civilly or criminally respon-
sible to the law, that was an act for which he could
be civilly or criminally responsible to the law provided
the disease of the mind of the person doing the act be
not so great as to make him unable to understand the
nature and consequence of the act which he was doingj^
This is not the only occasion upon which the
Master of the Rolls gave expression to the same
opinion as to the state of the law upon this point,
for in Emmens v. Pottle (1885) in reply to a statement
by counsel that a lunatic may be liable for libel, he
said : " That depends upon whether he is sane
enough to know what he is doing." (c)

It is submitted that the dictum of Lord Esher
(referred to above) constitutes a sound basis upon
which enquiry may usefully be made. With a view,
therefore, to the application, for the purposes of this
treatise, of the principle enunciated by the learned
Master of the Rolls, it is necessary that two matters
be considered, viz : — (i) the essential elements of the
tort committed, and (ii) the state of mind of the
person by whom the tort is said to have been com-
mitted.

(a) This matter Is referred to by a Judicial author (W. Markby, Judge of
Calcutta), who in Elements of Law, p. 131, says : — " How far a person who is
insane would be held responsible, in courts of civil procedure, for his acts or
omissions independently of contract j§ a matter on which one is surprised to
find our law books nearly silent,"

(b) 8 T.L.R. 555 C.A, (c) 16 Q.B.D., p. 356.

20 MENTAL DEFICIENCY

Accordingly, in this chapter have been set out
the elements of the main classes of tort known to
the Common Law with a view to the application of
the tests of insanity to which reference is made in
Chapters I. and VII. dealing with *' Definition and
Classification " and with " Evidence of Insanity "
respectively.

Trespass

(a) Trespass to the person.

(i) Assault. In the draft Criminal Code of 1879
an assault is defined as the act of intentionally apply-
ing force to the person of another directly or in-
directly, or attempting or threatening by any act or
gesture to apply such force to the person of another,
if the person making the threat causes the other to
believe upon reasonable grounds that the aggressor
has present ability to effect his purpose.

(ii) Battery. According to Holt, C. J., in Cole v.
Turner (a), the least touching of another in anger is
battery ; for, says Blackstone, (b) " the law cannot
draw the line between different degrees of violence,
and therefore totally prohibits the first and lowest
stage of it ; every man's person being sacred, and
no other having a right to meddle with it in any the
slightest manner." Battery includes assault and
although assault strictly means an inchoate battery,
the word assault is in modern usage generally made
to include battery and in this sense the word is used
in the following pages.

Inasmuch as in the law of tort a very considerable
area is covered by trespass, and in view also of a
recent decision in the Courts of New Zealand, the
chief decisions and opinions in regard to this tort
are set out for consideration. These are as follows : —

(a) 6 Mod. 149. (b) Com. iii. 120.

IN RELATION TO TORT 21

(i) It is stated by Lord Bacon that " if a man be
killed by misadventure, as by an arrow at butts,
this hath a pardon of course ; but if a man be hurt
or maimed only, an action of trespass lieth, though
it be done against the party's mind and will, and he
shall be punished for the same as deeply as if he had

done it of malice So if an infant within

years of discretion, or a madman, kill another, he
shall not be impeached thereof ; but if they put out
a man's eye or do him like corporal hurt, he shall be
punished in trespass " (a).

(2) Sir Matthew Hale, after enumerating the
incapacities or defects in persons recognised by the
law (among them dementia), states : — '' Ordinarily
none of these do excuse those persons that are under
them from civil actions to have a pecuniary recom-
pense for injuries done, as trespass, batteries, wound-
ings : because such a recompense is not by way of
penalty, but a satisfaction for damage done to the
party " (b).

(3) In Weaver v. Ward it is stated that although a
lunatic is not liable for a felony he is yet answerable
in trespass for an injury done to another. Trespass,
it is there stated, " tends only to give damages
according to hurt or loss " (c).

(4) In M or daunt v, M or daunt ^ Kelly, C. B., stated: —
" It is true that a judgment of dissolution may
operate as a punishment and so also may any verdict
or judgment in a civil action. . . . Yet in all or any
of these cases insanity is no defence, and no bar
to the suit, and no ground for a stay of proceed-
ings " (d).

These authorities are open to some serious criticism.

(a) Spedding's Ed. Lord Bacon's Works, Vol. VII., p. 348.

(b) Pleas of the Crown, Vol. I., p. 15.

(d) L.R. i P. & D., p. 142^

22 MENTAL DEFICIENCY

In the first place, each of the four English " authori-
ties " is mere obiter dictum. The first two, as state-
ments of sages of the law, command respect, but they
may properly be disregarded if they can be shown
to be contrary to legal principle as authoritatively
laid down by the Courts.

With regard to Lord Bacon's statement, it will be
noticed that he expressly refers first to an " infant
within years of discretion," thus suggesting a possible
qualification of the liability of an infant which is quite
inconsistent with his general statement as to the
nature of trespass, and with the unqualified liability
attributed to a lunatic.

As to Weaver v. Ward (a), a perusal of the whole
judgment will show that the statement regarding
the liability of a lunatic is inconsistent with the main
conclusion of the judgment. " Weaver brought an
action of assault and battery against Ward. The
defendant pleaded that he was, amongst others, by
the commandment of the Lords of the Council, a
trained soldier in London . . . and so was the plain-
tiff, and that they were skirmishing with their mus-
quets charged with powder . . . and as they were
so skirmishing, the defendant casualiter et per infor-
tunium et contra voluntatem suam, in discharging of
his piece, did hurt and wound the plaintiff. . . .
And, upon demurrer for the plaintiff, judgment was
given for him : for though it were agreed that if men
tilt or tourney in the presence of the King, or if two
masters of defence playing their prizes, kill one another,
that this shall be no felony ; or if a lunatic kill a man,
or the like, because felony must be done animo
felonico. Yet in trespass, which tends only to give
damages according to hurt or loss, it is not so ; and
therefore if a lunatic hurt a man, he shall be answer-
able in trespass : And therefore no man shall be
excused of a trespass (for this is the nature of aii ti^-^

j^a) Suprg,

IN RELATION TO TORT 23

cuse and not of a justification, proitt ei bene licuit)
except it may be judged utterly without his fault.
As if a man by force take my hand and strike you, or
if here the defendant had said that the plaintiff had
ran across his piece when it was discharging, or had
set forth the case with the circumstances, so as it had
appeared to the Court that it had been inevitable,
and that the defendant had committed no negligence
to give occasion to the hurt."

This decision was considered in Stanley v. Powell (a),
and it was there stated by Denman J. when delivering
judgment that " what Weaver v. Ward really lays
down is that no man shall be excused of a trespass
except it may be judged utterly without his fault."
If this comment be correct, then it is impossible to
accept without qualification the dictum as to the
liability of a lunatic.

It was certainly not held in Weaver v. Ward that
liability is absolute in all cases notwithstanding
inevitable accident, inasmuch as it was laid down that
in trespass no man shall be excused '' except it may
be judged utterly without his fault." The defend-
ant's plea was held bad because it only denied intention
and did not properly bring before the Court the ques-
tion whether or not the accident was inevitable.

As to the dictum of Kelly, C.B., when this was
cited by Counsel in the case of Emmens v. Pottle (b)
Lord Esher, M.R., interjected : — " That depends upon
whether he is sane enough to know what he was
doing." The qualification thus suggested is, it is
submitted, supported by the authorities to be noted,
and is consistent with the comment upon Weaver
V, Ward quoted above from Stanley v. Powell,

The question of the liability of a lunatic for his
torts came directly before the Supreme Court and

(a) (1891) I Q.B. 86.

(b) 16. Q.B.D. 356,

24 MENTAL DEFICIENCY

Court of Appeal of New Zealand in Brennan v.
Donaghy (a).

The following are the main facts relating to this
case as reported in the New Zealand Law Reports : —
Previously to the hearing of the civil action Brennan
had been tried for the same assault as an attempt to
murder and had been acquitted on the ground that
he was a lunatic at the time of his committing the
offence. Bv the Criminal Code of New Zealand a
lunatic is a person who is labouring under natural
imbecility or disease of the mind to such an extent
as to render him incapable of understanding the na-
ture and quality of the act or omission and of knowing
that such an act or omission was wrong. The jury
found that the defendant's insanity was absolute
and that he was incapable of any voluntary act. What
the defence relied upon was that an injury committed
by the defendant was, in the light of the facts, in-
distinguishable from an unavoidable accident.

It was held both in the Supreme Court and in the
Court of Appeal that the lunacy of the defendant was
not a defence. These judgments are weighty authori-
ties, and would be considered with respect by any
English or Colonial Court, but it is submitted with
all deference that they are unsatisfactory in principle
and that the balance of English authority is against
the view which they represent. Sir Frederick Pol-
lock in his book on Torts (b) refers to this decision as
follows : — " It has been held in New Zealand in 1901
{Brennan v. Donaghy) that a luriatic is civilly liable
for assault (presumably, therefore, for any kind of
trespass) even if he be unconscious of the nature
and consequences of his acts and incapable of under-
standing them. This decision is erroneous in principle
and is not required by any English authority. The
defence is not that the actor was insane, but that
there was no real voluntary act at all. Liability can

(a) 19. N.Z, l,.R. 289^ (b) loth Ed., p. 56^

IN RELATION TO TORT 25

be imposed in such a case only upon the obsolete
theory that inevitable accident is no excuse."

The decision of the New Zealand Courts was based,
to a very large extent, upon the American case of
Willi am s v. Hays (a) where the Supreme Court of New
York held that an insane person is just as responsible
for his torts as a sane person. The Court admitted,
however, " that a lunatic is not liable for those torts
in which malice and therefore intention actual or
imputed is a necessary ingredient, f.^., libel, slander,
or malicious prosecution."

Mr. Justice Earl proceeded as follows : — " In all
other torts intention is not an ingredient and the actor
is responsible, although he acted with a good and
even laudable purpose without any malice. The
law looks to the person damaged by another and
seeks to make him whole without reference to the
purpose or condition, mental or physical, of the person
causing the damage. The liability of a lunatic for
his torts, in the opinion of judges, has been placed
upon several grounds. The rule has been invoked
that where one of two innocent persons must bear a
loss, he must bear it whose act caused it. It is said
that public policy requires the enforcement of the
liability that the relatives of a lunatic may be under
inducement to restrain him, and that tort-feasors
may not simulate or pretend insanity to defend their
wrongful acts causing damage to another. The
lunatic must bear the loss occasioned by his torts as
he bears his other misfortunes and the burden of such
loss may not be put upon others."

In this case the American authorities are reviewed,
from which it appears that the American rule is said
to be based upon the English cases of Weaver v. Ward
(b) and Cross v. Andrews (c) neither of which is an
authority for the American doctrine of a lunatic'?

(a) (1892) 42 Amer., St. Rep. 743. (b) Supra,

26 MENTAL DEFICIENCY

responsibility for his torts. The former case has been
dealt with above, and the latter case decides only that
an innkeeper cannot plead insanity as a discharge of
liability for not keeping safely the goods of his guest.
*' This " says Mr. Beven, " is manifest enough :
business was carried on either by or for the lunatic,
and in either case he could not avoid responsibility
(a).»

The rule that " where one of two innocent persons
must bear a loss, he must bear it whose act caused it "
is not, in this absolute form, in accordance with the
authorities ; while the reasons of public policy which
are put forward are totally unsupported.

It would seem that the learned Solicitor General
for New Zycaland (Sir John Salmond) agrees with the
opinion of Sir Frederick Pollock that the decision in
Brcnnan v. Donaghy is erroneous in principle, and
savs that the American rule that a lunatic will be
judged in an action for negligence exactly as if he
were sane seems much too absolute (b).

That both of the New Zealand Courts ignored the
fact that in trespass to the person there must be a
voluntary act coupled with either intention or negli-
gence is manifest from a perusal of the judgments
delivered by Conolly, J. in the Supreme Court and by
Stout, C. J. in the Court of Appeal.

According to Clerk and Lindsell, the Common Law
of England is as follows : — "If a lunatic commit a
trespass w^hile in a state of frenzy he will not be liable
any more than a sane man who does a similar act
while under the influence of sudden terror which
deprives him of all power of deliberate choice (c)."

The chief authorities w^hich can be relied upon for
the decision in Brennan v. Donaghy are the four cases
and opinions stated above (p. 21). These authori-

(a) Negligence in Law, p. 47.

(b) Law of Torts, znd Ed., p. 62.

IN RELATION TO TORT ±7

tics having been considered earlier, it remains to
consider the authorities for the opinion that the case
of Brennan v. Donaghy was wrongly decided.

In view of the fact that there exists no authority
directly touching the question of a lunatic's liability,
one is compelled to turn to general principles. In
other words, one must see what view the Courts have
taken when the question of the nature of trespass has
come before them. Now, in the first place, it is clear
law that a man is not liable for inevitable accident,
but that, in such a case, damage must rest where it
falls. Two recent cases establish this beyond con-
troversy, viz, : —

(i) Holmes v. Mather (a). In this case the de-
fendant's horses, while driven by his servant in a
public highway, ran away and became so unmanage-
able that, although the servant could not stop them,
he could, to some extent, guide them. The defen-
dant, who sat beside his servant, was requested by
the latter not to interfere and complied with that
request. While trying to turn a corner safely the
servant guided the horses so that, without his intend-
ing it, they knocked down and injured the plaintiff
who was in the highway. The jury found that there
was no negligence and it was held that the act of
alleged trespass was not a wrongful act. In reviewing
the earlier cases quoted in the argument, Bramwell,
B., stated : — " As to the cases cited, most of them are
really decisions on the form of action, whether case
or trespass. The result of them is this, and it is
intelligible enough : if the act that does an injury is
an act of direct force vi ct ar?nis, trespass is the proper
remedy (if there is any remedy) where the act is
wrongful, either as being wilful or as being the result of
the neghgence. Where the act is not wrongful for
either of these reasons no action is maintainable,
though trespass would be the proper form of action if

(a) L.R. 10 Ex, 261.

28 MENTAL DEFICIENCY

it were wrongful. That is the effect of the
decisions (a)."

(2) Stanley v, Powell (b). The defendant, who was
one of a shooting party, fired at a pheasant. One of
the pellets from his gun glanced off the bough of a
tree and accidentally wounded the plaintiff who was
engaged in carrying cartridges and game for the
party. It was held that a trespass to the person is
not actionable if it be neither intentional nor the
result of negligence. Weaver v. Ward and other
shooting cases were fully considered by the Court
with the result that inevitable accident was held to be
a good answer to an action of trespass to the person.

As stated above (p. 24) this matter is discussed in
Pollock on Torts (c) and the learned author comes to
the conclusion that, in spite of some conflict in the
cases, inevitable accident (in the popular sense) is a
ground of excuse, and he disagrees with the state-
ments made in argument by Erskine in the case of
The Dean of St. Asaph (d) that " if a man rising in his
sleep walks into a china shop and breaks everything
about him, his being asleep is a complete answer
to an indictment for trespass, but he must answer
in any action for everything he has broken."

The learned author of Seven on Negligence (e)
says in considering Weaver v. Ward that '' it is hard
to see why, in the case of the lunatic, an exception
should be made to the general rule that one is excused
responsibility for the consequence of his act, if in the
words of the judgment in Weaver v. Ward it may be
judged utterly ' without his fault ' : or supposing
there be no exception, why ' if a man by force take
my hand and strike you,' I should not be liable :
while if a lunatic — not in the sense of one merely of
defective intelligence, but of one wholly without

(a) L.R. 10 Ex. at p. 268. (b) [1891] i Q.B. 86.

(e) 3rd Ed. pp. 46 and 47.

IN RELATION TO TORT 29

intelligence — hurt a man he is answerable/' The same
author points out (a) that in the case of partial com-
prehension of his act by the lunatic no difficulty can
arise ; while in the case of utter irresponsibility,
where alone the point can arise, the lunatic would in
most cases be able to do harm only through the neglect
of some responsible agent who would be answerable
in propria persona. The injured person would,
therefore, not be without a remedy even where the
lunatic is not to blame ; in most cases the remedy
against the responsible authorities of an asylum,
or in the case of patients under private control,
against him in whose control they are, would be ample.
If we turn next to the reason why a man is not
liable for damage which, though caused by his act,
is yet the result of inevitable accident in the popular
sense, we are driven to the conclusion reached by Mr.
Justice Holmes after consideration of the authorities
that the law does, in general, determine liability by
blameworthiness subject to the limitations that
minute differences in character are not allowed for and
that the standards by which the law measures a man's
conduct are necessarily external. This being so,
the standard must, in theory, be capable of being
known (b). " The law," he states in concluding his
investigation, " does not adopt the coarse and im-
politic principle that a man always acts at his peril.
On the contrary, its concrete rules, as well as the
general questions addressed to the jury, show that
the defendant must have had at least a fair chance of
avoiding the infliction of harm before he becomes
answerable for such a consequence of his conduct ; and
it is certainly arguable that even a fair chance to
avoid bringing harm to pass is not sufficient to throw
upon a person the peril of his conduct, unless judged
by average standards he is also to blame for what he

(a) Ibid., p. 47.

(b) The Common Law, p. iii.

30 MENTAL DEFICIENCY

does (a)." It is worthy of note that this expression of
opinion, written in 1881, is clearly borne out by the
subsequent decision in Stanley v, Powell referred to
above.

If Sir Frederick Pollock and Mr. Justice Holmes
be right — and it must be borne in mind that their
views are not based upon theory only, but upon a
close investigation of the authorities — then it is
impossible to resist the conclusion that unsoundness
of mind of such a degree as to prevent the defendant
from knowing what he was doing is a valid defence
to an action of trespass. In what respect should the
act of a madman differ in consequence to him from
that of a sleepwalker, or from that of a person who
is seized with a fit and in consequence falls through
a shop window ? Again, why should a distinction
be drawn between external compulsion — as in the
hypothetical case put at the end of the judgment in
Weaver v. Ward — and total absence of a controlling
mind ? Wood Renton commenting on Weaver v.
Ward says : — " If an exception is to be made in favour
of compulsion, it is difficult to see on what principle
its extension to total incapacity can be resisted (b) ; "
and it is submitted — and the statement is supported by
the language used by Lord Esher in H anbury v.
Hanbtiry (c) — that such incapacity would be a valid
defence in any action based on tort.

With regard to the English Authorities, it will be
seen that the decision of the New Zealand Courts in
Brennan v. Donaghy is based upon numerous dicta,
all of which, however, are expressly or impliedly
founded upon the theory that in trespass intention
is wholly immaterial and that the law aims simply at
giving compensation for damage done. Such a
theory is contrary to the latest decisions of the English

(a) Ibid., p. 163.

(b) Law of and Practice in Lunacy, ist Ed., p. 64.

IN RELATION TO TORT 31

Courts and is against legal principle as laid down by
high authorities. Sir Frederick Pollock states de-
finitely that if there he no voluntary act there can be
no trespass (a).

With reference to the foregoing statement of Sir
Frederick Pollock, it may be observed that in many
cases of hypnotism persons have been known to per-
form various acts the nature of which demonstrates
clearly that the " subjects " were completely devoid
of the power of controlling or of directing their acts (b).
According to the decision in Brennan v, Donaghy,
however, a hypnotised person would be held respon-
sible for torts committed by him while in this con-
dition of ^was*-somnambulism. It is submitted
that by no rule of the Common Law of England could
liability be imposed in such a case. While it is ad-
mitted that there may be practical difficulties of prov-
ing the fact of hypnotism, the possibility of the com-
mission of torts by hypnotised persons is a contingency
with regard to the legal result of which the law should
be able, on principle, to deal.

It should be borne in mind that the conclusion ar-
rived at, viz,, that a lunatic cannot be held liable for
trespass, can apply only where the lunatic is so insane
as to be incapacitated totally from knowing what he
was doing or from knowing that his action was wrong.
The strictest proof of the existence of such a state of
mind must be insisted upon by the law ; but in cases
where total incapacity has been established to the
satisfaction of the Court (as has been shown was the
case in Brennan v, Donaghy) insanity ought to be
admitted as a valid defence to an action of trespass.
If insanity be a valid defence to an action of trespass
to the person, it ought to be also a valid defence to an
action of trespass to land and to goods.

(a) Pollock on Torts, loth Ed., p. 39.

(b) Dr. Hack Tuke, " Sleep-walking and Hypnotism," pp. 51 et seq.

32 MENTAL DEFICIENCY

(b) Trespass to Land,

Every unlawful entry by one person on land in the
possession of another is a trespass for which an action
lies although no actual damage is done (a).

A person unlawfully enters on land if he wrongfully
sets foot on, or rides, or drives over it, or takes pos-
session of it, or expels the person in possession, or
pulls down or destroys anything permanently fixed
to it, or places or fixes anything on or in it ; or places,
or suffers to continue on his own land anything
which permanently overhangs the land of another,
or discharges or causes water to flow upon such land,
or suffers filth, or any injurious substance which has
been collected by him on his own land to pass to
another's land (b).

In the words of Lord Camden, L.C.J., in Entick v,
Carrington, '' By the laws of England, every invasion
of private property, be it ever so minute, is a trespass.
No man can set his foot upon my ground without my
licence, but he is liable to an action though the damage
be nothing ; which is proved by every declaration in
trespass, where the defendant is called upon to answer
for bruising the grass and even treading upon the
soil (c)."

The question of responsibility of a lunatic for tres-
pass having been fully considered above under the
heading of " trespass to the person," where it has been
shown that inevitable accident is a good defence to an
action for assault, there is no need to deal at length
with trespass to land. It is instructive, however,
to notice that in an American case it was held that,
where a boy ran into his employer's sljop in order to
escape from a man who was pursuing him with a pick-
axe, and in so doing accidently knocked out the faucet
from a cask of wine and thus caused a quantity of wine

(a) Per Holt, C. J. in Ashhy v. White, i Sm.L.C. at p. 26a.

(b) Blundell v. Catierall, 5 B. & Aid. 268.

IN RELATION TO TORT 33

to be wasted, his pursuer, not the boy, was liable for
the damage sustained by the shopkeeper (a).

Similarly, a lunatic who is so deluded that he has
no concept of private property would seem not to be
liable for trespass committed by him while under the
influence of his delusion. From the point of view of
the owner of the land, the trespass of such a lunatic
is merely the result of inevitable accident and the
damage lies where it falls.

If one man take possession of or interfere with the
goods and chattels of another, either by laying hold of,
removing, or carrying away inanimate things, or by
striking, killing, chasing or driving cattle, sheep or
domestic animals in which the owner has a valuable
property, he is guilty of a trespass and is responsible
in damages, unless the act can be justified on the
ground that it was done in necessary defence of the
person, or of property, or in the maintenance of one's
absolute or relative rights, or was done in obedience
to some authority given by the party or by the law,
or can be excused on the ground that it was the result
of inevitable accident, or was caused by the act of the
plaintiff himself (b).

The fact that inevitable accident is a lawful excuse
to an action for trespass to goods as well as to trespass
to the person would seem to be a reason for the exemp-
tion of lunatics from liability for trespass to goods
when the act constituting the trespass is that of a
person whose mind is so diseased that he is incapable
of wrongful intention or of exercising ordinary human
foresight and care. In other words, where the mental
defect is so great that the act complained of is that of a
mere automaton, it would seem that, by analogy to the
cases on inevitable accident considered above, a

(a) Vanderbergh v. Truoor, 4 Denio 464.

(b) Kirk «. Qrcffoni^ i Ex. Dit. 55 j Fornur «. flwnt^ Brovn^ aiQ^

34 MENTAL DEFICIENCY

lunatic would not be liable for trespass to goods
committed during such insanity.

Actions on the Case.
(a) Defamation, — (i) Libel.

Lord Blackburn in Capital & Counties Bank v,
Henty (a) defined libel as a written statement published
without lawful justification or excuse, calculated to
convey to those to whom it is published an imputation
on the plaintiffs injurious to them in their trade, or
holding them up to hatred, contempt, or ridicule.

Baron Parke in Par miter v. Coupland (b) said, " A
publication, without justification or lawful excuse,
which is calculated to injure the reputation of another,
by exposing him to hatred, contempt, or ridicule, is a
libel." In Gather cole v, Miall (c) it is reported that
when directing the jury the same learned judge said
that a libel is " anything written or printed, which
from its terms is calculated to injure the character of
another, by bringing him into hatred, contempt, or
ridicule, and which is published without lawful justifi-
cation or excuse."

In the words of Lord Penzance in Capital & Counties
Bank V. Henty (d) malice has always been held to be
the gist of an action of libel. In order, therefore, that
defamation may be actionable the statement com-
plained of must be malicious. The question as to
what is meant by the term *' malice " as applied to
cases of this sort has been a subject of careful con-
sideration by the Courts from time to time. It would
seem to be established that whatever may have been
the origin or the original meaning of the phrase
" falsely and maliciously " as used in the old form of
pleading, malice in the modern law signifies neither
O^ore nor less, in this connexion, than a wrongful act

(a) 7 A.C. at p. 771. (b) 6 M. & W. at p. io3,

(f) 15 M. & \y. 3j p-3J»- (4) 7 A.c, ^t p, 7.67,

IN RELATION TO TORT 35

done intentionally without just cause or excuse (a).
This statement of the law was referred to with approval
by Lord Herschell in Allen v. Flood (b).

Mr. Innes says that the malice referred to is '' the
mere conscious violation of a right without just cause
or excuse (c)."

Again, an authority on Libel says that a good de-
fence to an action for damages in libel may be that
there was no conscious publication on the ground of
insanity (d).

According to Clerk and Lindsell (e) whether a lunatic
can be sued for libel would seem to depend upon the
question whether he was insane upon the subject
to which the libel related. If he were insane, then,
presumably, he would not be liable, inasmuch as
liability in libel depends upon either an actual or
implied consciousness that the matter published is
defamatory. In other words, if a person be so far
out of his mind that he does not know what he is
doing, he cannot be said to act intentionally, and
therefore cannot be responsible for any defamatory
matter which he may publish.

In view of the fact that an infant occupies a privi-
leged position both by Statute and at Common Law,
on the ground that his mind is undeveloped, con-
sideration is now given to the analogy which exists
between the liability for libel of an infant and that of
a lunatic in whose case the mind is impaired to such
an extent that for many purposes he is more lacking
in mental capacity than an infant even though thg
latter be a child of tender years.

The general law relating to the torts of infants is
t}).at they are liable if they are old enough to know
that what they are doing is wrong ; thus, a child p|

(a) Bayley, J. in Bromage v. Prosser, 4 B. & C. at p. 255.

(b) (1898) A.C. at pp. 124-125.

(d) Blake Odgers, " Libel and Slander," p. 771,
(e^ J^gw of Torts^ 6tb E^.., p, 5^,

36 MENTAL DEFICIENCY

tender years would not be held liable for defamatory-
words published by him. In the same way, if it were
shown that at the time of committing the alleged
libel the defendant was so insane as to be unable to
understand the nature of his acts and that he was
incapable of malice, it would seem that these circum-
stances would amount to such a valid excuse as would
bring the case within the definition laid down by Baron
Parke. In other words, a lunatic would appear not to
be liable for publishing a false statement which he
believed to be true and in regard to the publication of
which there was in fact no real voluntary act at all.
Furthermore, all mental experts are agreed that a per-
son cannot be said to know and to intend the natural
and probable consequence of his acts if his mind be so
diseased as to render him incapable of regarding facts
as they really are.

Dr. Mercier states that persons suffering from the
common form of epilepsy known as petit mat have
been known suddenly to become entirely uncon-
scious, and, while in this unconscious condition, to have
walked for a considerable distance, climbed over
stiles, got through gates, avoided passing carts, and
even answered when spoken to (a). It is submitted
that by no rule of the Common Law of England would
a man be held responsible, either civilly or criminally
for wrongful acts done by him while in this condition,
inasmuch as in respect of acts done while under the
influence of disease such as this the actor can have no
wrongful intention. In other words, such a man can
have no mens rea while he is in the condition described
above. The state of the mind of a lunatic who does
not know what he is doing is precisely analogous to
that of the person suffering from fetit mat.

If the particular form of insanity from which a per-
son is suffering be characterised by an entire absence
Qf the capacity of intention, it woulds eem that, ai luna-*

^a) Sanity and Insanity, p. XQi^

IN RELATION TO TORT 37

tic would not be held liable for defamation. This
would appear to be supported by the dictum of Lord
Esher who in Emmens v. Pottle said that, " a lunatic
may be liable for a libel but only if he be sane enough
to know what he is doing (a)."

In conclusion, it would appear that frorrt a careful
consideration of the elements which constitute de-
famation and by analogy to the cases of epileptics and
of infants of tender years, a lunatic is prima facie
incapable of committing libel. Whether or not the
particular form of the insanity from which the patient
is suffering is such as to render him irresponsible
through want of mind is a question of fact which in
each case would require to be determined by the jury
or by the Court with or without the assistance of ex-
pert medical witnesses.

(ii) Slander.

In Slander the defamatory words spoken falsely
and maliciously must be accompanied by special
damage, except in the following cases : —

(a) where the words obviously impute, or may

fairly be understood as imputing, a criminal
offence punishable by imprisonment without
the option of a fine.

(b) where the words impute having a contagious

disease which would result in exclusion from
society.

dishonesty or incompetence in an office of
profit, profession or trade :

(d) where the words impute unchastity or adultery

to any woman or girl.

The foregoing observations with regard to the
liability of a lunatic for libel apply, mutatis mutandis^
to slander.

(a) 16 Q.B.D., 354.

38 MENTAL DEFICIENCY

(b) Malicious Prosecution,

In certain cases of tort express malice must be proved
in order to establish liability.

" Malice " means wickedness, but in legal phrase-
ology it is used to signify the contemplation of the doing
of a wrongful act towards another person. In its
legal sense it ranges from '' malevolence," as in injury
committed in revenge, to the mere conscious violation
of a right without just cause or excuse, as in a mere
trespass.

Malice is said to have been present whenever the
injurer contemplated harm to the person injured,
though he may also have entertained a desire to benefit
himself, and though the harm contemplated may be
merely incidental to the fruition of that desire. It is
present, therefore, though in diflferent degrees, in the
highwayman who murders a man to rob him of his
purse, and in the trespasser who gets over a fence to
commit a petty theft of a few flowers.

Malice is variously spoken of as '' express malice,'
" actual malice," " malice in fact," and " malice in
law," or '' implied malice." The first three terms
are identical in meaning. They signify such malice
as had an actual existence which is required by law
to be shown by evidence to be laid before the jury,
as distinguished from " malice in law," or '' implied
malice," which in certain circumstances is presumed
by the law to exist.

In an action for malicious prosecution "^ the plaintiff
has to prove, first, that he was innocent and that his
innocence was pronounced by the Tribunal before
which the accusation was made ; secondly, that there
was a want of reasonable and probable cause for the
prosecution, or, as it may be otherwise stated, that the
circumstances of the case were such as to be in the
eyes of the judge inconsistent with the existence of a
reasonable and probable cause ; and, lastly, that the

IN RELATION TO TORT 39

proceedings of which he complains were initiated in a
malicious spirit — that is, from an indirect and im-
proper motive and not in furtherance of justice (a)."

From the foregoing statement of the elements of the
tort of malicious prosecution, it will be seen that the
existence of an indirect and improper motive on the
part of the defendant is a necessary factor in order
to make him responsible. In other words, the
plaintiff cannot succeed in his action unless he can
show that the defendant acted without reasonable
and probable cause.

Inasmuch, therefore, as the gist of this tort is the
presence of malice or the absence of reasonable and
probable cause, it would appear that where, through
lack of understanding, (i.e., either through the mind's
being undeveloped, as in the case of a child of tender
years, or being impaired, as in the case of a lunatic)
neither malice nor improper motive can be present,
the defendant would not be held liable for malicious
prosecution.

Nuisance

A nuisance is an inconvenience materially inter-
fering with the ordinary comfort physically of human
existence, not merely according to elegant or dainty
modes and habits of living, but according to plain and
sober and simple notions among the English people (b).
That is to say nuisance is the wrong done to a man by
unlawfully disturbing him in the enjoyment of his
property, or in some cases, in the exercise of a common
right (c).

It is not necessary for the purposes of this treatise
to set forth all the different ways in which nuisance
may be committed. It will suffice if we consider a

(a) Per Bowen, L. J. in Ahrath v. North Eastern Ely. Co. ii Q.B. Div. at
p. 455 and quoted with approval by Lord Davey in Cox v. English Scottish dt
Australian Bank (1905) A.C. at p. 170.

(b) Per Knight-Bruce, V.C, in Walter v. Selfe, 4 D.G. & S. 322.

40 MENTAL DEFICIENCY

typical case where one man's acts or omissions cause a
nuisance to his neighbours, i,e.^ cases to which the
maxim " Sic utere tuo ut alienum non Icedas " appHes.
The rule laid down in the judgment of the Exchequer
Chamber delivered by Blackburn, j. and approved
by the House of Lords, is as follows :. /' We think
that the true rule of law is, that the person who for
his own purposes, brings on his lands and collects and
keeps there anything likely to do mischief if it escapes,
must keep it at his peril, and if he does not do so, is
prima facie answerable for all the damage which is the
natural consequence of its escape. He can excuse
himself by showing that the escape w^is owing to the
plaintiff's default ; or perhaps that the escape was the
consequence of vis major ^ or the Act of God . . . The
person whose grass or corn is eaten down by the
escaping cattle of his neighbour, or whose mine is
flooded by water from his neighbour's reservoir, or
whose cellar is invaded by the filth of his neighbour's
privy, or whose habitation is made unhealthy by the
fumes and noisome vapours of his neighbour's alkali
works, is damnified without fault of his own ; and it
seems but reasonable and just that the neighbour
who has brought something on his own property
which was not naturally there — harmless to others so
long as it is confined to his own property, but which he
knows to be mischievous if it gets on his neighbour's —
should be obliged to make good the damage which
ensues if he does not succeed in confining it to his own
property. But for his act in bringing it there no
mischief could have accrued, and it seems but just
that he should at his peril keep it there so that no
mischief may accrue, or answer for the natural and
anticipated consequences. And upon authority, this
we think is established to be the law, whether the
things so brought be beasts, or water, or filth, or
stenches" (a).

(a) Fletcher V. Rylands L.R. i Ex. 265, L.R. 3. H.L. 330.

IN RELATION TO TORT 41

In Nichols v. Marsland^ Mellish, L. J. said, " when
the law creates a duty and the party is disabled from
performing it without any default of his own, by act
of God, or by the King's enemxies, the law will excuse
him (a)." In view of these statements of the law,
it would appear that where it can be proved to the
satisfaction of the Court that the state of a lunatic's
mind is such that he was disabled from performing
the duty of using his property in such a manner that
he does not cause a nuisance to his neighbours, he
would not be held liable for this tort.

Deceit

The tort known as Deceit consists in leading a man
into damage by wilfully or recklessly causing him to
believe and to act on a falsehood. This is one of that
class of torts in which either a positive wrongful
intention, or such indifference as amounts to guilty
recklessness, is a necessary element : so that in Deceit
liability is based not on a universal right of the plain-
tiff, but on the unrighteousness of the defendant.

In order to sustain an action of Deceit, there must
be proof of fraud : nothing short of that will suffice.
The statement complained of must comply with
each and all of the following conditions : —

(i) It is untrue in fact.

(ii) The person making the statement, or the

person responsible for it, either knows it to

be untrue, or is reckless whether it be true
or false (b).

(iii) It is made to the intent that the plaintiff shall
act upon it, or in a manner apparently fitted
to induce him to act upon it (c).

(a) Nichols V. Maryland L.R. lo Ex. 255.

(b) Per Lord Herschell in Derry v. Peek, 14 A.C. at p. 374.

42 MENTAL DEFICIENCY

(iv) The plaintiff does act in reliance upon the
statement, in the manner contemplated or
manifestly probable, and thereby suffers
damage (a).

(v) The statement must be in writing and signed
in one class of cases, viz : — where the state-
ment amounts to a guaranty : this require-
ment is statutory (b) and, for the purposes of
this treatise, needs no further comment.

These conditions are considered seriatim.

(i) Mere expressions of opinion do not as a rule
amount to deceit (c) but they may do so where,
for example, the state of a man's opinion is a
material matter. In order to prove fraud
there must be actual misrepresentation of
fact. Thus, where a prospectus is issued
to shareholders in a company to invite sub-
scriptions to a loan, a statement of the pur-
poses for which the money is wanted is a
material statement of fact, and, if untrue,
may be ground for an action of deceit (d).

Suppressio veri is as much fraud as sug-
gestio falsi (e) : in other words, if by reason of
the omission of material facts the statement as
a whole is calculated to mislead a person
ignorant of those facts into an inference con-
trary to the truth, there is fraud. In the
words of Lord Cairns (f), " There must, in
my opinion, be some active mis-statement of
fact, or at all events, such a partial and frag-
mentary statement of fact as that the with-
holding of that which is not stated makes

(a) Barry v. CrossJcey, 2 J. & H. 22-3.

(b) Lord Tenterten's Act, 9 Geo. IV., C. 14. S.6.

(d) Rdpinotnn v. Fitzmaurice, 29 Ch. Div. 459.

(e) Stewart v. Wyoming Rancfie Co., 128 U.S. 383.

(f) Peek V. Ourney L.R. 6 H.L. 403.

IN RELATION TO TORT 43

that which is stated absolutely false." In
order to prove such fraud as the law considers
sufficient to sustain an action, it is only neces-
sary to show that what the defendant asserted
was false within his own knowledge (a),
(ii) The state of mind of the defendant is the im-
portant feature in considering whether the
person making the statement had a guilty
intention to deceive. In the words of Lord
Herschell, the statement must have been
made " knowingly or without belief in its
truth, or recklessly " (b).

In every case this is a question of fact which
must be proved. As stated by Bowen, L.J.,
'' The state of a man's mind is as much a fact
as the state of his digestion " (c).

An honest though dull man cannot be held
guilty of fraud any more than of '' express
malice."
(iii) It is a necessary condition of liability either
that the misrepresentation complained of
should have been made directly to the plain-
tiff, or that the defendant should have in-
tended or desired that the plaintiff should
suffer loss.

It is enough that the representation was
made directly or indirectly in such a way that
the defendant intended the plaintiff to act
upon it, and that the plaintiff has acted in
the manner contemplated and suffered damage
which was a natural and probable consequence.
Lord Selborne said that there must be that
intention which the law imputes to every
man to produce those consequences which are
the natural result of his acts (d).

(a) Chandelor v. Lopus, Cro. Jac. 4 ; Haycrafi v. Creasy^ 2 East 92.

(b) Derry v. Peek, 14 App. Cas. at p. 371.

(d) Smith V. Chadwick, 9 A.C. 187.

44 MENTAL DEFICIENCY

(iv) There must be action taken by the plaintiff
as a result of the defendant's misrepresenta-
tion : it is not enough that the defendant
intended the plaintiff to act in a certain way :
no cause of action lies where the defendant
made an unsuccessful attempt, however un-
righteous, to deceive the plaintiff, as no actual
damage has been caused, (a)

From the foregoing statement of the elements of
the tort of Deceit, it appears that without guilty
intention there is no cause of action. A child of
tender years, by reason of the undeveloped state
of his mind, would appear to be incapable of that
dolus (unlawful intention) without which there can
be no deceit. Similarly, it would appear that where
the defendant is so insane as to be incapable of form-
ing any intention at all he would not be held liable
for damage sustained by a person who had acted
upon his statements.

Furthermore, it may be mentioned that the only
ground upon which corporations (which have no
mind) have been held liable for fraud is where the
above mentioned conditions have been complied
with by a duly authorised agent of the corporation
(b). By analogy, where a lunatic is so diseased as
to have lost the power of reason (i.e., where he has
no mind), it would seem that he would be incapable
of committing a fraud.

Negligence

" Negligence is a negative word ; it is the absence
of such care, skill, and diligence as it was the duty of
the person to bring to the performance of the work
which he is said not to have performed " (c).

(a) Bayley v. Merrel, 3 Bulet. 95.

(b) Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259.

IN RELATION TO TORT 45

In Heaven v, Pender, Brett, M.R., said that action-
able negligence " consists in the neglect of the use
of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff, with-
out contributory negligence on his part, has suffered
injury to his person or property " (a).

It will be observed that these statements go further
than the actual words of Baron Alderson's dictum
that negligence is '' the omission to do something
which a reasonable man guided upon those considera-
tions which ordinarily regulate the conduct of human
affair^, would do, or doing something which a prudent
and reasonable man would not do " (b).

The law does not, speaking generally, hold a man
answerable for mere omission, and, unless he be under
some specific or general duty of action, his omission
will not, in any circumstances, be either an offence
or a civil wrong. In order to prove negligence, it
is necessary, first of all, that '' some already existing
relation must be established, which relation will
be found in most cases, though not in all, to depend
on a foregoing voluntary act of the party held
liable " (c).

In Le Lievre v. Gould (d) it was held by the Court
of Appeal that Derry v. Peek has established the prop-
osition that an action for negligence in making
representations does not lie in the absence of contract,
and that negligence is not actionable in the absence
of some duty to be careful, created by contract, or
by some well-established principle of law, such as
that which obtains in the case of an invitation and
in the cases of parties using the highway.

Negligence exists where the defendant has failed

(a) ir Q.B.D. at p. 507.

(b) Blyih v. Birminoham Waterworks Co., 1 1 Ex. at p. 784.

(d) (1893) I Q.B. 491.

46 MENTAL DEFICIENCY

to perform such duty as the circumstances of the
case placed upon him, and, to this extent, there must
have been either recklessness as to the consequences
of the omission, or there must have been wilful in-
tention on the part of the defendant not to take
such steps to avoid damage as would have been taken
by an average prudent man. In other words, liability
is based upon the assumption that the defendant is
capable of being " guided upon those considerations
which ordinarily regulate the conduct of human
affairs." It would appear to follow, therefore, that a
child of tender years would not be liable for acts or
omissions which in the case of a person of full age
would amount to negligence (a). By analogy to the
child of tender years (whose incapacity is based upon
his want of mind), a lunatic whose mind has through
disease or accident become defective would seem not
to be liable for actionable negligence, inasmuch as
he has no capacity for acting as a prudent man.

Furthermore, the law requires that a person who
is under a duty to another shall, in conducting his
affairs, be bound to foresee that harm may result
from his conduct. Consequently, he is liable for any
damage which may result from his failure to exercise
such foresight, provided the damage is not too remote.
In other words, the defendant is under a duty to
foresee whatever a prudent and intelligent man
would have foreseen.

According to Sir Frederick Pollock, K.C. (b), lia-
bility in tort may be said to rest, to a large extent,
upon the maxim " every man is presumed to intend
the natural consequences of his acts." In the words
of Bayley, J., in R. v. Harvey (c), " a party must be
considered, in point of law, to intend that which is

(a) Cooke v. Midland O.W.R. of Ireland (1909) A.C. 229.

(b) Law of Torts, loth Ed. p. 34.

IN RELATION TO TORT 47

the necessary and natural consequence of that which
he does." The term " acts " in the maxim includes
wrohgs of omission as well as wrongs of commission ;
so that Shepherd was held liable for putting out
Scott's eye because the natural and probable conse-
quence of throwing a lighted squib into a building
full of people was the infliction of damage upon some-
one present (a) : similarly, the omission on the part
of a man in charge of a crane to warn passers-by in
the street below that the goods were descending
was evidence of negligence against the employer of
the man who was working the crane (b).

The law has recognised that children of tender years
are incapable of exercising the amount of care and
caution which is demanded of an adult of normal
mental capacity (c). By analogy, it is concluded
that a lunatic whose mind is so diseased as to preclude
him from foreseeing any of the consequences of his
acts would not be held liable for the results of his
negligence, inasmuch as he is incapable of that know-
ledge (or foresight) to which Mr. Justice Holmes
attaches so much importance in the determination
of liability in cases of alleged negligence (d).

A fortiori, where a lunatic is incapable of knowing
what he is doing, i.e., where he is not a reasonable
being at all, he would appear not to be liable : the
result in such a case being that the person damaged
through the act or omission of the lunatic would be
in a position analogous to that of a person who has
suffered damage through inevitable accident — con-
sideration of which follows.

Inevitable Accident.

The question of liability for damage caused by
inevitable accident was fully considered in Stanley v,

(a) 2 W. Bl. 892.

(b) 3 H. & C. 596.

(d) Common Law, p. 174.

48 MENTAL DEFICIENCY

Powell (a) where it was held that a sportsman was
not Hable for the damage sustained by a beater who
lost the sight of an eye as a result of a bullet's glanc-
ing off a tree and striking the eye ; the ratio decidendi
was that the act complained of was unintentional
and was not due to the negligence of the sportsman.

In the case of McDonald v. Snelling (b), A., by
careless driving of his horse, ran his carriage into
B.'s carriage and so frightened B.'s horses that they
ran into the carriage of C, with the result that damage
was done to C. and to his carriage. In this case B.'s
failure to manage his horses was due to their being
taken out of his control through the negligence of A.
It was held that B. was not liable, inasmuch as his
action was involuntary and, therefore, not in-
dependent.

Similarly, it would seem that where the driver of
a carriage suddenly went mad and, while insane,
drove so negligently that another user of the highway
sustained damage, the lunatic, while being under an
absolute duty to drive his carriage properly, has
ceased to be guided " upon those considerations
which ordinarily regulate the conduct of human
affairs," and would, consequently, appear not to be
liable. In the second place, the man who uses the
public highway does so at his peril ; i.^., he must take
the risk of sustaining damage from causes which are
included under the term '' inevitable accident."

As Baron Bramwell said in Holmes v. Mather (c),
" For the convenience of mankind in carrying on the
affairs of life, people as they go along roads must
expect, or put up with, such mischief as reasonable
care on the part of others cannot avoid." For
example, if A.'s horse shy, through no negligence of
A.'s, and mount the footpath and kick B., B. has no
cause of action against A., inasmuch as B.'s injury

(a) (1891) I. Q.B. 86. (b) 14 Allen (Mass) 290.

IN RELATION TO TORT 49

is a result of his taking that risk to which all users
of the highway are subject.

Similarly, where B.'s dress is splashed with mud
by a passing motor car to such an extent that the
dress cannot be worn again, neither the driver nor
the owner of the car can be made liable, inasmuch as
the damage resulted from the risk attendant upon the
ordinary use of the public way.

From the foregoing considerations it would appear
that a lunatic may not be liable for damage caused
by his inability, through no immediate fault of his
own, to act in a rational way. In certain cases of
insanity the lunatic is no more nor less than an auto-
maton and, as such, would be unaffected by those
mental considerations to which the law requires a
man to pay heed at his peril. It is concluded, there-
fore, that a lunatic of this or of a similar type would
not be held answerable for those acts or omissions
which in a normal person would amount to actionable
negligence.

The general purpose of the law of Tort is to secure
to a man indemnity against certain forms of harm to
person, reputation, or estate, not because they are mala
in se, but because they are injuries to the person
concerned. On the other hand, the law presumes
or requires a man to possess ordinary capacity to
avoid harming his neighbours, unless a clear and
manifest incapacity is shown : nevertheless, the
law does not, in general, hold him liable for un-
intentional injury, unless, possessing such capacity,
he might and ought to have foreseen the danger ; or,
in other words, unless a man of ordinary intelligence
and forethought would have been to blame for acting
as he did. Any legal standard fixed for the purpose
of determining liability in cases of tort must, in
theory, be one which would apply in similar circum-
stances to all men not specially excepted. In practice,

so MENTAL DEFICIENCY

no doubt, one man may have to pay damages, while
another may escape, according to the different feel-
ings of different juries : but all that this demonstrates
is that the law does not perfectly accomplish its ends
because human intelligence is not perfect.

These principles are well illustrated in the case of
contributory negligence. Now the law admits of
exceptions to the rule that every man is presumed
to possess ordinary capacity not only to avoid doing
harm to his neighbours but also to avoid being harmed
by his neighbours ; so that when a man has a distinct
defect of such a nature that all can recognise it as
making certain precautions impossible, he will not
be held answerable for not taking them ; that is
to say, the law recognises that people suffering
from lameness, blindness, or deafness cannot exercise
that care which an ordinary person would take
with a view to the avoidance of threatened injury
arising out of another's negligence. Thus, a lame
man would not be precluded from obtaining damages
in respect of injuries received, if, owing to his dis-
ability, he was unable to avoid being knocked down
by a motor car which had got out of control.

Similarly, a blind man proceeding along the foot-
path would not be guilty of contributory negligence
if he failed, through his infirmity, to avoid a collision
with a cart which had been backed on to the pave-
ment (a).

It is clear then that a blind man is not required
to see at his peril. He is, no doubt, bound to con-
sider his infirmity in regulating his actions, yet, if
he properly find himself in a certain situation, the
neglect to take precautions requiring eyesight would
not prevent him from recovering damages in respect
of an injury to himself, and, presumably, would not
make him liable for injuring another person, so long
as he was not culpably negligent by omitting to take

(a) Pollock on Torts, p. 469, Holmes on the Common Law, pp. 107 et seq.

IN RELATION TO TORT 51

such precautions as even a blind man may reasonably
be expected to take. On the same principle, a deaf
man is not required to hear at his peril, although
he may suffer damage through his defect (a).

The general rule relating to contributory negli-
gence may be stated thus : — Where a person sustains
an injury in circumstances where he could, by the
exercise of such care and skill as he was bound to
exercise, have avoided the consequences of the
defendant's negligence, he cannot recover because he
has been guilty of contributory negligence. In other
words, the rule is not that any negligence on the
part of the plaintiff will preclude him from recovering
damages ; but that, although there have been negli-
gence on the part of the plaintiff, he may, nevertheless,
recover damages, unless he could by ordinary care
have avoided the consequence of the defendant's
negligence. Thus, where a man had improperly left
an ass on the highway, he was held entitled to recover
against one who negligently drove against it (b).

According to Lord Blackburn, " If the plaintiff
could, by the exercise of such care and skill as he
was bound to exercise, have avoided the consequences
of the defendant's negligence, he cannot recover " (c).

In Radley v, L, & N , W, Railway Company (d)
Lord Penzance said, " Though the plaintiff may have
been guilty of negligence, and although that negli-
gence may in fact have contributed to the accident,
yet if the defendant could in the result, by the exer-
cise of ordinary care and diligence, have avoided
the mischief which happened, the plaintiff's negli-
gence will not excuse him."

It is important to note — especially for the purpose
of this treatise — that this rule does not apply to

(a) Skelton v. L. & N. W. Rly. Co. (1867). i L.R. 2 C.P. 631.

(b) Davies v. 3Iann, 10 M. & W. 546.

(<-) Dublin^ Wicklow & Wexford Rly. Co. v. Slattery, 3 App. Ca. at p. 1207.
(d) (1876) I App. Ca. at p. 759.

52 MENTAL DEFICIENCY

children of tender years, as is shown by the following
cases : —

(i) Where a man carelessly left his horse and cart
unattended in the street, and a young child
climbed into the cart and had a severe fall — the
horse being led forward by a boy — the owner
was held responsible, apparently on the ground
that, having thrown temptation in the child's
way, he could not be allowed to object that
the child had yielded to it (a).

(ii) Where a young child climbed a defective fence
which abutted on a highway and was injured
by its falling upon him, the owner was held
liable (b).

(iii) Where a child of tender years was injured
.through playing on a heap of paving-stones
on the defendants' premises, it was held that
the defendants were not liable for negligence,
because there was neither allurement, nor trap,
nor invitation, nor dangerous animal or thing.
(Cooke V, Midland G, W, Railway of Ireland
distinguished) (c).

In the cases cited there seems to be no doubt
that if the defendant had been under any duty to the
plaintiff the latter would have neen entitled to recover
damages.

The ratio decidendi in these cases would seem to be
the absence in the mind of the child of that mental
capacity the presence of which would make a person
of full age, in similar circumstances, guilty of con-
tributory negligence.

The law appears to require that, in cases where he
is the plaintiff, an infant of tender years is bound to
take only those precautions of which such an infant

(a) Lynch V. Nurdin, i Q.B. 29.

(b) Harold v. Watney (1898) 2 Q.B. 320.

IN RELATION TO TORT 53

is capable. The same principle may properly be
applied in cases where he is the defendant. In other
words, an infant is liable only in cases where he is old
enough or intelligent enough to know better than to
do the acts complained of.

It would appear to follow, therefore, that where a
lunatic sustained injury through his inability to
exercise the care and skill required by the general
rule of the law, and thus directly contributed to the
injury, he would not be precluded from recovering
compensation any more than a child of tender years
would be in similar circumstances, the duty to exercise
proper care lying upon the person through whose
negligence in the first instance the plaintiff suffers
damage.

Inasmuch as the law has recognised exceptions to
the general rule operative in cases of tort, it is in-
structive to make a comparison between the capacity
of a corporation and that of a lunatic to commit a tort.

A corporation aggregate has no personality, has no
mind or will, and therefore can act only through its
agents. Upon the principles embodied in the maxims
respondeat superior and qui facit per alium facit per se,
it has been decided that a corporation may be held
liable for trespass (a), for trover (b), and for libel (c).
There seems to have been some difficulty in deter-
mining whether a corporation could be held liable
for torts which involve malice : it was held, however,
inCitizens^ Life Assurance Co. v. Brown (d) that a corpo-
ration would not be held to be incapable of malice
so as to be relieved of liability for malicious libel
in respect of a statement published by one of its
servants acting in the course of his employment. In

(a) Maund v. Monmouthshire Canal Co., 4 Man & G. 452.

(b) Yarborough v. Bank of England, 16 East 6.

54 MENTAL DEFICIENCY

the words of Lord Lindley, when delivering judgment
in the Judicial Committee of the Privy Council (a),
" If it is once granted that corporations are for civil
purposes to be regarded as persons, i.e., as principals
acting by agents and servants, it is difficult to see
why the ordinary doctrines of agency and of master
and servant are not to be applied to corporations as
well as to ordinary individuals. These doctrines
have been so applied in a great variety of cases in
questions arising out of contract and in questions
arising out of torts and frauds, and to apply them to one
class of libels and to deny their application to another
class of libels on the ground that malice cannot be
imputed to a body corporate appears to their lord-
ships to be contrary to sound legal principles."

A lunatic, on the other hand, cannot, during the
continuance of his insanity, effectively appoint an
agent (b). It would seem, therefore, that if it be
shown that he is in an analogous position to that of a
corporation (having no mind or will of his own) he
cannot be held liable for his torts.

It is instructive also to compare the capacity of
an infant to commit tort with that of a lunatic. The
liability of an infant old enough to earn his living
was considered in a case decided in 1794 where it was
held that an action for money had and received would
lie against an infant to recover money which he em-
bezzled. Lord Kenyon stated, in delivering judg-
ment, that infants were liable for actions ex delicto
though not ex contractu (c).

In Burnard v. Haggis (d) where an infant who had
hired a mare for riding caused her death by jumping
her, it was held that the act of riding the mare into
the place where she received her death-wound was

(a) Citizens' TAfe Assurance Co. v. Brovm (supra) at p. 426.

(b) Elliot V. Ince, 7 De G.M. & G. 475.

(d) 1^ C.B.N.S. 52.

IN RELATION TO TORT 55

as much a trespass, notwithstanding the hiring for
another purpose, as if, without hiring at all, the
defendant had gone into a field and turned the mare
out, and hunted her and killed her. It was a bare
trespass not within the object and purpose of the
hiring and was an absolute wrong on the part of the
defendant for which he was unquestionably liable (a).

In the case of In re Seager (b) an infant employed
by a butcher to collect sums of money due from his
master's customers was held liable ex delicto to an
action brought for the recovery of the money received.
Kay, J. said that there was no doubt that the boy
was liable (c).

In Cowern v. Nield (d) where the law as declared
in Bristow & Eastman (e) was approved, it was held
that, if the infant had obtained by fraud the money
sought to be recovered, he could be required to return
the money which he had fraudulently received.

In each of the cases mentioned above the infant
had reached years of discretion : that is to say, he
was of sufficient age to be employed by others although
he was under legal disability by reason of his youth.
In no case, however, has an infant of tender years
been held responsible for tortious acts committed
by him. The reason would seem to be that where
an infant is lacking in mental development he is not
answerable for his delictual acts. Two cases are
cited below which show conclusively that infants of
tender years are not precluded by the general rule
of contributory negligence from recovering damages
in respect of injuries sustained by them as a result
of the negligence of the defendant.

While an infant not of tender years may be held
responsible for his torts, an infant of tender years
who has not reached an age when he can be expected

(a) Bumard v. HaaoU, 14 C.B.N.S. per Erie, C.J. & Willis J. p. 53.

(b) 60 L.T. 665. (c) 60 L.T. at p. 665.
(d) (1912} 2 K.B. 419. (c) SuprQ,

S6 MENTAL DEFICIENCY

to exercise caution in avoiding physical danger is
not prevented from recovering damages in respect
of injury sustained by him through the negHgence
of others, although he himself may have been guilty
of acts or omissions which in the case of an adult
would amount to contributory negligence. {Cooke v.
Midland G. W. Railway of Ireland (a). Lc^iham v,
R, Johnson ^ Nephew, Ltd, (b).)

The absence of cases to the point would seem to
show that, just as an infant of tender years is not
responsible for contributory negligence, so is he not
responsible for actionable negligence and for other
torts.

By analogy, a lunatic whose mind is proved to be
in a state similar to that of an infant of tender years,
would seem not to be responsible for his torts.

It appears that Austin took a similar view to that
stated above, for, in his Twenty-sixth Lecture, when
dealing with certain aspects of the maxim ignorantia
juris neminem excusat, he says that an infant or an
insane person is exempted from liability not because
he is an infant or because he is insane, but because
it is inferred from his infancy or insanity that the
alleged wrong was not the consequence of unlawful
intention or inadvertence. " It is inferred,^^ he says,
" from his infancy or insanity, that, at the time of
the alleged wrong, he was ignorant of the law : or
(what in effect is the same thing) was unable to re-
member the law, or (assuming that he had known,
and was able to remember the law) it is inferred
that he was unable to apply the law and to govern
his conduct accordingly ; that he did not and could
not foresee the consequences of his conduct ; and,
therefore, did not and could not foresee that his
conduct tended to the consequences which it was
the end of the law to avert. For, in order that I
may adjust my conduct to the command or pro-

(a) (1909) A.C. 229. (b) (1913) I K.B. 398.

IN RELATION TO TORT 57

hibition of the law, I must know and remember what
the law is ; I must distinctly apprehend the nature
of the conduct which I contemplate ; and (in the
language of lawyers and logicians) I must correctly
subsume the specific case as falling within the law.
In other words, I must compare the conduct which
I contemplate with the purpose or end of the law
and must be able to perceive that it agrees or con-
flicts with that purpose or end. Unless I am com-
petent in this intellectual process, the sanction can-
not operate as a motive to the fulfilment of the obli-
gation, or (changing the expression) the obligation is
necessarily ineffectual. Every application of the
law to a fact or case is a syllogism of which the minor
premiss and the conclusion are singular pro-
positions " (a).

Bracton's view is expressed in the following words :
— " In multis ad paria judicantur minor et furiosus
vel multum non differunt, quia ratione carent " (b).

Bentham also seems to have regarded a lunatic as
exempt from liability for his torts on the ground that
the prospect of the evils held forth by the law " can-
not have the effect of influencing the conduct of
the party " (c).

Sir William Blackstone's view of the liability of
lunatics for their torts was that inasmuch as a wrong
is the effect of a " vicious will " (by which, Austin
says, he means " unlawful intention or culpable negli-
gence "), infants and madmen are exempted because
the act goes not with their will (d).

The Roman Law excepted furiosi from liability
for delicts on the ground that a lunatic has no mind :
that is to say, he was presumed to be incapable of
intending to do harm to his neighbours (e).

(a) Lectures on Jurisprudence XXVI.

(b) De exceptionibus, cap, XXIX. S. 3.

(d) Blackstone Comm., IV. 20-24.

(e) D.50, 17, m pr. ; D.47, 10, 3, i.

S8 MENTAL DEFICIENCY

By the Roman Dutch Law any person is answer-
able for his wrongful acts if he had intelligence to
understand that he was doing wrong. '' This "
says Mr. R. W. Lee " excludes lunatics and young
children " (a).

American Law, While the American authorities
are agreed that persons non compos (as well as child-
ren without discretion) are not responsible for their
torts where intention is a necessary element of lia-
bility, they state that infants and lunatics, without
regard to their degree of incapacity, are liable, in a
civil action, for the damage caused by such torts of
theirs as would in sane adults amount to a tort of
either wilful wrong or culpable negligence. This
liability is said to rest according to Messrs. Shearman
& Redfield (b) not upon the usual principle of personal
fault (for there may be none) but upon the broad
ground that where one of two innocent persons must
bear a loss, he must bear it whose act caused it.
In this statement lies an explanation of the difference
between the American Law and English Law as to a
lunatic's responsibility for his torts.

Whatever may be said as to the equity of the
American rule, it is contrary to principle and there
is no authority for it apart from the case of Williams
V. Hays (c) which has been considered above in the
section on Trespass.

Sir Frederick Pollock says (d) that liability in such
a case can be imposed only upon the obsolete theory
that inevitable accident is no excuse. The same
learned author (e) examines the cases relating to this
matter and shows that the theory referred to upon
which alone liability of lunatics for their torts can
rest is now obsolete and that the abandonment of

(a) Introduction to Roman Dutch Law, p. 279.

(b) Law of Negligence, 6th Ed., p. 314.

(d) Law of Tort, p. 56.

(e) Ibid., pp. 138-151.

IN RELATION TO TORT 59

the theory is now recognised by the Common Law
of England.

Sir John Salmond, K.C., says (a) that there is no
adequate English authority as to the liability of
lunatics for torts committed by them. The learned
author is hardly consistent when he states that in-
evitable mistake of fact due to unsoundness of mind
is no defence to wrongs of wilful interference with
the person, property, reputation, or other rights of
other persons, such as trespass, assault, conversion,
or defamation, inasmuch as he proceeds to state that,
if the lunacy of the defendant is of so extreme a type
as to preclude any genuine intention to do the act
complained of, there is no voluntary act at all, and,
therefore, no liability. The latter statement, it is
submitted, is precisely in accordance with the Com-
mon Law of England which does not make a man
responsible for acts done where the state of his mind
precludes the operation of those forces which in
normal circumstances regulate a man's conduct. Both
Sir Frederick Pollock and Sir John Salmond suggest
that the Common Law would not hold a man respons-
ible for mischief done by him while in an epileptic
fit, or by a somnabulist in his sleep, or by a fever
patient in his delirium.

From the foregoing considerations it is submitted
that the Common Law of England regards a lunatic
generally as being incapable of committing a tort,
but that, where it can be shown to the satisfaction
of the Court that the particular nature of the in-
sanity did not preclude him from understanding the
nature and probable consequences of the particular
act complained of, he will be liable for his torts just
as an ordinary person is liable, i.e., on the ground that
he intended the natural and probable consequence
of his acts.

In the words of Mr. Justice Holmes, '' There is no

(a) Law of Torts, p. 6i.

6o MENTAL DEFICIENCY

doubt that in many cases a man may be insane and
yet perfectly capable of taking the precautions and
of being influenced by the motives which the cir-
cumstances demand. But if insanity of a pronounced
type exist, manifestly incapacitating the sufferer
from complying with the rule which he has broken,
good sense would require it to be admitted as an
excuse " (a).

(a) Common Law, p. 109.

CHAPTER 111

MENTAL DEFICIENCY AND THE LAW OF

CONTRACT

Part I. — Generally.

In order that investigation may be made in a logical
and scientific manner into the question whether a
lunatic may or may not be capable, in the eye of the
law, of entering into a contract, it has been deemed
convenient, as a necessary preliminary, to set out
shortly certain of the leading principles of the English
law of contract.

In innumerable legal decisions and in the works of
the great text-writers it has been asserted that the
general theory of English law in regard to acts done
and contracts made by parties which aflfect their
rights and interests, is that in all cases, there must be
a free and full consent in order to bind the parties.
The existence of a free and full consent is insisted
upon : moreover, the consent must be an act of
reason accompanied by due deliberation, the mind
weighing, as in a balance, the good and evil on each
side (a). It has been observed by a celebrated
jurist (b) that every true consent implies three things
— first, a physical power ; secondly, a moral power ;
and thirdly, a serious and free use of both powers.
In dealing with perfect obligations Grotius says : —
" Quod autem fit animo non deliberato id nos quoque
ad vim obligandi non credimus pcrtinere " (c).

(a) Story Eq. 222.

(b) Puffcnd, De J. N. et G. bk. '?, c.6. S.3. Barbeyrac's note I.

62 MENTAL DEFICIENCY

Pothier says : — " A contract is a particular kind
of agreement and an agreement is the consent of
two or more persons to form some engagement, or
to rescind or to modify an engagement already made,
Duorum vel plurium in idem placitum consensus (a).
The essence of contract consists in consent : it follows,
therefore, that a person must be capable of giving
his consent and, consequently, must have the use of
his reason in order to be able to contract.

In Austin's notes of his undelivered lectures he
, says that the consent of the parties is of the essence
of a contract (b).

According to Sir Frederick Pollock, an agreement
is an act in the law whereby two or more persons
declare their consent as to any act or thing to be done
or foreborne by some or one of those persons for the
use of the others or other of them (c). This state-
ment was adopted by Kekewich, J., in Foster v,
Wheeler where he said : — " The first and most essen-
tial element of an agreement is the consent of the
parties. There must be the meeting of two minds in
one and the same intention ... It must be the
intention of the parties that the matter in hand shall,
if necessary, be dealt with by a Court of Justice.
The common intention of the parties to an agreement
is a fact, or inference of fact, which, like any other
fact, has to be proved according to the general rules
of evidence " (d).

Sir John Salmond (e) says that '' a contract is
a bilateral act in the law which involves the consent-
ing wills of two or more distinct parties : in other
words, a contract is an agreement which creates rights
in personam by way of consent. No agreement is a
contract unless its effect is to bind the parties by the

(a) Pothier on Obligations p. 3.

(b) John Austin's Jurisprudence — Appendix.

(d) 36 Ch. D. 695.

(e) Jurisprudence, Ch. XVI.

AND THE LAW OF CONTRACT 63

vinculum juris of a newly created personal right.
It commonly takes the form of a promise or set of
promises. That is to say, a declaration of the con-
senting wills of two persons that one of them shall
henceforth be under an obligation to the other
naturally assumes the form of an undertaking by
the one with the other to fulfil the obligation so
created. . . A valid agreement is one which is fully
operative In accordance with the intent of the parties.
Where there is no real consent there is no real agree-
ment. In order that consent may be justly allowed
as a title of right, it must be free."

Savigny's definition is as follows : — " Une con-
vention est I'accord de plusieurs parties qui deter-
mincnt par une manifestation de volonte commune
leur relations juridiques " (a).

M. Ahrens defines contract as " le consentement
exprime de plusieurs personnes a I'effet de creer
entre elles un rapport obligatoire sur un objet de
droit" (b).

Holland says that an obligatory contract Is the
union of two or more parties in an accordant expres-
sion of will, with the object of creating an obligation
between them (c). The same writer says that a
lunatic can perform no juristic act because he has
no capacity for wilhng ; and that lunatics, though
capable of holding property, are, strictly speaking,
incapable of any legal act (d).

Grotius says : — " No promise is binding unless the
person who made it has liberty to choose for himself,
and understanding to direct him in his choice. With-
out these faculties of liberty and understanding he
is no moral agent, or is not capable of doing an act
so as to produce any moral effect by it. Upon this
account the promises of infants, idiots and madmen

(a) Le Droit dcs Obligations, vol. 2. p. 142.

(b) Cours ii. p. 226.

(d) Ibid., pp. 72 and 235.

64 MENTAL DEFICIENCY

are not binding : such persons are not moral agents
and are therefore unable to do any valid act."

Grotius adds that the use of reason is the first
requisite to constitute the obligation, or vincnUim
juris ^ of a promise, which a lunatic, idiot, and an
infant are consequently incapable of making :
" Priniuni rcquiritur usus rationis ; ideo et furiosi et
amentis ct infaniis nulla est fro?nissio.^^ (a).

A typical example of the conflicting statements
made by the text-writers is to be found in the fact
that the learned author of Leake on Contract (b)
says, without qualification, that a person may be
mentally afflicted to siich a degree as to be incapable
of understanding an agreement, and, consequently,
incapable of binding himself by contract. He refers
as his authorities to Ball v. Mannim (c), Blackford v.
Christian (d) and to Jenkins v, Morris (e). On the
same page he quotes the decision in the Imperial Loan
Co, V. Stone (f) which is an important qualification
of his first statement. (In Ball v. Mannim the House
of Lords approved the declaration of the judge in the
Court below that both of the parties to a valid contract
must be capable of understanding and acting in the
ordinary affairs of life).

Now, as stated above, a contract is a voluntary
agreement which will be recognised and enforced by
law and, in order to create an agreement, there miust
be consent of parties — such consent may be either
expressed or implied from conduct. In other words,
there must be duorum pluriumve in idem placitum
consensus. Moreover, the two essential elements in
consent are that it m^ust be free and it must be intelli-
gent. Consent cannot be obtained where one of
the parties is without an intelligent mind ; therefore
in strict theory a lunatic cannot give consent ; and,

(a) De Jure Belli et Pads. Lib. II. cap. XI. Sec. V.

(b) 6th Ed. p. 415. (c) 3 Bli. N. S. I.
(d) I Knapp. P.O. 73. (e) Infra.

(f) Infra.

AND THE LAW OF CONTRACT 65

consequently, he cannot enter into a contract. This
conchision is precisely the deduction expressed by
the maxims of the Roman Law cited below. That
the jurists applied the deduction logically and con-
sistently is made clear by Sohm, who states : — '* By
Roman law a lunatic cannot even buy a loaf for him-
self, though he have money to pay for it " (a). That
is to say, no obligation would be created.

In the case of a lunatic, however, it is manifest
that it may happen that the intellectual faculties
are so obscured and the judgment so disordered that
the agreement, which is the foundation of the contract,
cannot have taken place and, there being no contract,
there will be no primary obligation and therefore
no liability to a secondary one. In the Institutes of
Justinian (b) it is declared that '' Furiosus nullum
negotium gerere potest, quia non intelligit quod agit."
Bracton and the author of Fleta use similar language
in their works when dealing with this subject. Thus,
for example, Bracton writes " Furiosus autem stipulari
non potest, nee aliquod negotium gerere, quia non in-
telligit quod agit " (c).

The law as stated by Bracton and by the author
of Fleta was approved by the Court of Appeal as
recently as in 1890 in the case of re Rhodes, Rhodes v,
Rhodes (d) where it was stated that there cannot be a
contract by a lunatic. While it is true that in this
case the question for the decision of the Court was
whether or not a lunatic could in certain circumstances
be said to have entered into an implied contract, it
is interesting to note that in the opinion of the learned
judges of the Court of Appeal a lunatic was incom-
petent to make an express contract, much less an
implied contract. The Court considered that to use
the term '' implied contract " in respect of a lunatic
was unfortunate and that it would be more con-

(a) Instes. Section 45. (b) Book 3. Tit. 19. S. 8.

(cj Bra.Qt. bk. 3, c. ?, s. ?. (d) ^4 Ch. D. 9^,

66 MENTAL DEFICIENCY

sistent with the principles of jurisprudence to state
that the circumstances which in the case of a normal
person would give rise to an implied contract would, in
the case of a lunatic, give rise to an implied obligation.

In conformity with the above-mentioned principles,
the positive laws of many countries have declared
to be invalid the contracts and voluntary acts (e.g.,
conveyances) of idiots, lunatics and other persons of
unsound mind. In fact, speaking generally, the law
of most civilised countries treats lunatics as wholly
irresponsible for their actions. In such countries a
lunatic is not chargeable at law for acts done by
him. He cannot commit a crime or a ton : he
cannot marry, or make a will, or bind himself by
contract, or be a witness, or bring an action. Quoad
haec omnia he is regarded as standing precisely on
the same level as a child below the years of dis-
cretion (a).

The following paragraphs showing the position in
other legal systems of a lunatic so far as regards
capacity in contract have been inserted by way of
commentary on the old English doctrine of total
incapacity, consideration of which follows in the next
section.

The Roman Law was quite clear and consistent
upon the matters referred to. It always treated the
ordinary lunatic as being practically in the same
position as the infans pupillus. The general maxims
were furor nulla voluntas est (b) and furiosus nullum
negotium gerere potest, quia non intelligit quod agit (c).

(a) These statements do not apply to acts done by a lunatic during what
is termed a " lucid interval " {quo furor intcrviissus esi)^ for during a lucid
interval — which is always a question of fact — there is no insanity at all : in
fact, the person in question is sane for the time being.

(b) Dig. L. 17 fr. 40.

(c) Gains Com. in. Sec. 106. Just. I. iii, 19 Sec. 8; Dig. Bk. 12, Sec. i.
Sub-sec. 125 Bk. XXVII, Sec. 10,. Sub-sec. 10. Bk. XLIV, Sec. 7. Sub-sees
L 24-465 Bk. L, Sec. 17, Sub-sees 5-40; 2 Voet on the Pandects, Bk. 27,.
tit. 10, Sub-sec. 3 ; Cujacius, Ed. 1618. Vol. III. p. 907, on Digest XLIV., 7,
46 ; Hunter's Roman Law. 4th Ed., p. 606 ; Sohm, Inst. Roman Law, p. 140J
5. 44j p, 328 ; Salkpwski, Roman Private Law, p. 256,

AND THE LAW OF CONTRACT S']

He had less capacity even than a pupil above in-
fantia^ because while the latter could with auctoritas
of his tutor enter into any lawful contract and could,
even without it, be bound by one which was of benefit
to him, all contracts alleged to have been entered
into personally by a furiosus were totally null and
void.

The uncertain duration of mental incapacity led
the Romans to appoint a curator — not a tutor —
to be the guardian of the lunatic. The curator was
intended to supply that which the lunatic lacked,
viz.^ civil capacity.

Similarly, under the law of Scotland (following the
Roman Law), persons in a state of '' furiosity " or of
" idiocy " are declared to be incapable of, and not to be
bound by, any legal act. Thus, Lord Stair in his
Institutions (a) says : — '' Neither infants, nor idiots,
nor furious persons, except in their lucid intervals,
can contract."

The , German Code, which follows closely the
Roman Law, places lunatics and infants exactly on
the same footing. The relevant paragraphs are as
follows : —

104. Geschaftsunfahig ist

(i) Wer nicht das siebente Lebensjahr vol-
lendet hat ;

(ii) Wer sich in einem die freie Willens-
bestimmung ausschliessenden Zustande
krankhafter Storung der Geistesthatigkeit
befindet, sofern nicht der Zustand seiner
Natur nach ein voriibergehender ist ;

(iii) Wer wegen Geisteskrankeit entmiindigt
ist ;

105. Die Willenserklarung eines Geschaftsun-

fahigen ist nichtig.

68 MENTAL DEFICIENCY

The law of British India is contained in the Indian
Contract Act, 1872, Sections 11 and 12 of which de-
clare that contracts made by insane or intoxicated
persons are void.

The following statement of American Law appears
in a leading American work (a) : —

'' They who have no mind ' cannot agree in mind '
with another ; and, as this is the essence of a contract,
they cannot enter into a contract. Mere mental
weakness or inferiority of intellect will not incapacitate
a person from making a valid contract .... There
must be such a condition of insanity or idiocy as,
from its character or intensity, disables him from
understanding the nature and effect of his acts and
therefore disqualifies him from transacting business
and managing his property : and an adult person,
although of unsound mind, can become liable on an
implied contract for necessaries."

. If the condition of lunacy be established by proper
evidence under proper process, the representatives and
guardians of the lunatic may avoid a contract
entered into by him at a time when he is thus
found to have been a lunatic, although he seemed to
have his senses, and the party dealing with him did not
know him to be of unsound mind. But this rule has
one important qualification quite analogous to that
which prevails in the case of an infant and resting
undoubtedly on a similar regard for the interests of
the lunatic. This is, that his contract cannot be
avoided, if made bona fide on the part of the other
party, and for the procurement of necessaries, which,
as in the case of infants, would not be restricted to
absolute necessaries, but would include such things
as are useful to him and proper for his means and
station in life.

The finding, by a competent court, of the fact of
lunacy and the appointment of a guardian are held

(a) Parsons' Law of Contracts, oth ]g,4^

AND THE LAW OF CONTRACT 69

to be conclusive proof of such lunacy, and all subse-
quent contracts are void.

In a recent American case (a) where a mortgage
made by a lunatic during the insanity was set aside,
the Court observed that it is not material that in
taking the deed the grantee acted in good faith,
and without knowledge of the grantor's insanity,
because he who deals with an insane person, as with
an infant, does so at his peril.

While the American law protects both infants and
lunatics without regard to the other party's knowledge
or want of knowledge of the infancy or of the insanity,
it imposes a quasi contractual duty upon infants
and lunatics to compensate for necessaries supplied
to them.

By the Austrian Civil Code, whoever has not the use
of his reason .... is incapable of making or accept-
ing a promise. (Art. 865). Whoever demands the
annulment of a contract for the want of consent must
return everything he has received to his advantage
in consequence of such a contract (Article 877).

By the Chilian Civil Code, persons of unsound mind
are absolutely incapable of contracting. (Article 1447).

According to French Law (Code Napoleon) among
those persons who are declared to be incapable of con-
tracting are interdicted persons, i.e., persons of full age
who are in an habitual state of imbecility, or of
insanity — even where subject to lucid intervals — in
respect of whom an order for interdiction has been
made.

The Roman-Dutch Law, while denying the capacity
of an insane person to bind himself by contract,
recognises the equity of allowing a person who has,
in good faith, expended money on behalf of a lunatic
to have his expenses recouped. In Molyneux v.
Natal Land & Colonisation Co. (b) it was held by the

(a) Brigham r. Fayerweather. 144 Mass. 88.

(b) [1905J A.C. 555.

70 MENTAL DEFICIENCY

Judicial Committee of the Privy Council that a
contract made by an insane person is void and not
merely voidable, quite apart from the fact that the
other party did or did not know of the existence of the
insanity.

In the middle ages — in the days of the trade guilds —
when English commerce was in its infancy, the accep-
tance of the plain doctrine of total incapacity enun-
ciated on p. 65 above did not affect the convenience of
traders ; but when commerce began to develop upon
broad lines, it was felt that a strict application of the
doctrine would operate unfairly, inasmuch as it might
lead to practices which, if unhindered, would prove
inimical not only to the maintenance of justice, but
also to the development of trading and of commerce.
The objections to the old doctrine — which recognised
no difference between one lunatic and another — were
said to be obvious to the observer of human nature
and to fall under four heads, viz : — (i) the insecurity of
enjoyment ; (2) the encouragement of fraud ; (3) the
restraint of trade ; and (4) the restraint upon
alienation.

The old doctrine of total incapacity was first at-
tacked by an application of the ancient rule of pro-
cedure that no man may stultify himself by pleading
his own incapacity. It would appear, however,
that the old rule was not assailed until the reign of
Edward III ; for Britton (who wrote in the reign of
Edward I) asserts that dum fuit non compos mentis
was at that time a sufficient plea to avoid a man's own
bond (a). There is also a writ in the Register from
which it is clear that it was possible for the alienor
to recover lands aliened by him during his insanity (b).

While it is true that the authority of the rule was
questioned in the third year of the reign of Edward
III, this attempt to modify it was apparently unsuc-

(a)rBritt. f. 66. (b) Fol. 228.

AND THE LAW OF CONTRACT 71

cessful, for Fitzherbert several years later (Circ. 1534)
states definitely that the writ of '' Dum fuit non
compos mentis " lies for the man who has aliened his
land in fee simple, fee tail, for life or for years while
he was of unsound mind (a). It is interesting to note,
however, that in the reign of Elizabeth it was held
certainly upon two occasions, once in an action of
debt due upon a bond (Stroud v. Marshall (b)), and once
in an action against an innkeeper for the loss of his
guest's goods (Cross v. Andrews) (c), that the plea
that a man may not stultify himself by pleading his
own incapacity was bad, and that Fitzherbert's
statement was not law.

Sir Edward Coke quotes Littleton (d) and the
Year Books (e) as his authorities for the statement that
the law did not allow a man to stultify himself by
pleading his own incapacity in order to avoid his acts
on the ground of his being non compos mentis. In
Beverleyh case (f) the Court accepted Coke's statement
of the law as correct, and, on this authority, refused
to allow a man to avoid an act which he had per-
formed during his insanity. In other words, the
effect of the decision in Beverley^s case was to make a
lunatic absolutely liable for his alleged contracts.
The fact that he was or was not so insane as not to be
able to understand the nature of his act does not
appear to have been considered by the Court which
merely applied the curious rule of procedure that a
man could not stultify himself by pleading his own
insanity.

In Beverleyh case the Court seems to have been so
convinced of the existence of reliable authority for its
judgment that a resolution was passed deciding also
that there should not be any relief in equity. It may
be observed, however, that the veto of the Common

(a) Nat. Brev. 202. (b) Cro. Eliz. 398.

(e) 39 Hen. VI. 42 b. 5 Ed. III., 70. (f) 4 Rep. 123b.'

72 MENTAL DEFICIENCY

Law judges was disregarded by the Court of Chancery.

There appears to have been a tendency on the part
of the Common Law judges of the first half of the
nineteeneth century to follow the rule approved in
Beverley^s case whenever it seemed equitable to do so ;
but, on the other hand, they did not hesitate to ignore
the rule whenever a strict application of it would have
been contrary to the principles of natural justice (a).

How conflicting were the authorities as to the
liability of lunatics for their acts is well illustrated by
reference to the decision in Thompson v. Leach (1690)
(b) where it was held that the deed of a lunatic was
void on the ground that " lunatics, like infants, know
not how to govern themselves," the Court having
declared that " the cases of lunatics and infants go
hand-in-hand " and that " it is incongruous to say that
acts done by persons of no discretion shall be good
and valid in the law." On the other hand, Lord St.
Leonards stated in 1845 that, in his opinion, it was
incontrovertibly established that the party himself
could not, after he had recovered his senses, plead his
lunacy in avoidance of the deed (c).

According to the text-writers, however, a survey of
the relevant decided cases reveals the fact that the
universal authority of the doctrine that the contract
of a lunatic is void has been gradually modified with-
out being expressly overruled (d) and that the rule
that no man could stultify himself by pleading his
own incapacity has been modified to such an extent
that, in the year 1849, it was held in the case of
Molton V Camroux (e) and confirmed on appeal (f)
that unsoundness of mind is a good defence to an
action upon a contract, provided that due proof can be
given that the defendant lacked capacity to contract
and that the plaintiff either knew it or would have

(a) Yates v. Brotcn, 2 Str. 1104. (b) 3 Mod. Rep. 301.
c) 2 Sugden, Powers, p. 179. (d) See Pope on Lunacy, Book II. Ch. i.

e) 2 Exch. 487. (f) 4 Exch. 17.

AND THE LAW OF CONTRACT 73

known it if he had exercised ordinary care and ob-
servation.

It should be observed also that before the decision
in Motion v. Camroux, (a) the rule in Beverley^s case (b)
had been subjected to hostile attacks by several emi-
nent authorities. For instance, Fonblanque in his
book on Equity states that to adhere to the rule
that a man may not plead his own incapacity is in
defiance of natural justice and of the universal practice
of the civilised world (c).

Again, in the case of Thompson v. Leach (d) it was
observed by Lord Holt that it was unaccountable that
a man should not be able to excuse himself by the
visitation of heaven, when he might plead duress
from man to void his own act ; Sir W. Evans states
that nothing could be more absurd than this maxim (e);
while Mr. Justice Story expresses his disagreement
with it in the following terms : — '' how so absurd and
mischievous a maxim could have found its way into
any system of jurisprudence professing to act upon
civilised beings is a matter for wonder and humilia-
tion (f)."

In America the doctrine has been repudiated as
being contrary to reason and to justice : the American
authorities sustain the principle that lunacy nullifies
a contract and that insanity may be either specially
pleaded or given in evidence under the general issue (g).

Although it may have seemed contrary to justice
for it to be a rule that a lunatic was bound by his
contracts, inasmuch as he could not plead his own
incapacity, it has, nevertheless, been defended by
some English text-writers on the ground that the

(a) Supra.

(b) Supra.

(d) 3 Mod. 301.

C«') 2 Poth. on oblig. Evans' note, App. 3. p. 25.

(f) I Story Eq. Jur. 236.

(g) Mitchell V. Kin>jham, 5 Pick. 431 ; Orant v. Thompson, 4 Conn. 203.

74 MENTAL DEFICIENCY

rule worked well in practice, as it protected bona fide
purchasers and sellers, and imported an element of
certainty into the matter, which fact was considered
to be of much utility.

The old rule having been disposed of, the way is
now open for consideration to be given to the modern
rule.

The Modern Rule.

The modern rule as to a lunatic's capacity to enter
into contracts rests to a large extent, but not entirely,
upon the case of Molton v, Camroiix (a), where an
action was brought by the administrators of an in-
testate lunatic to recover the money paid by the
deceased to an assurance society in respect of two
annuities which were determinable with his life.
It was proved that the intestate was of unsound mind
at the date of the purchase, but that the transactions
were fair and in the ordinary course of business, and
that the insanity was not known to the society. It
was held that the money could not be recovered.
Upon subsequent appeal to the Exchequer Chamber
the rule was laid down in the following terms : —

'' The modern cases show that when that state of
mind was unknown to the other contracting party,
and no advantage was taken of the lunatic, the
defence cannot prevail, especially where the contract
is not merely executory, but executed in the whole
or in part, and the parties cannot be restored al-
together to their original positions " (b).

Whether or not this rule is, in fact, supported by
authority and by principle it is the object of this
chapter to determine.

According to the decisions in several old cases,
every person dealing with a lunatic, with knowledge
of his incapacity, is deemed to perpetrate upon him
a fraud which avoids the contract (c). In the exist-

(a) Supra. (b) 4 Exch. 17

AND THE LAW OF CONTRACT 75

ence of this legal presumption probably lies an ex-
planation of the insistence by the Courts upon proof
of the other party's knowledge of the alleged lunacy.

Any doubt which may have existed relative to the
present law as to the position of a person who, having
recovered from his lunacy, seeks to avoid a contract
entered into by him while he was of unsound mind
is said to have been removed by the decision of the
Court of Appeal in The Imperial Loan Co. v. Stone (a).
In this case a promissory note had been signed by a
lunatic as surety, and the statement of defence to an
action in which the lunatic was sued alleged that the
defendant when he signed the note was so insane
as to be incapable of understanding what he was
doing, and that the insanity of the defendant was
known to the plaintiffs. In the Court below the
jury were unable to agree as to whether or not the
plaintiffs were cognisant of the lunacy of the defend-
ant, but, notwithstanding this, the judge ordered
judgment to be entered for the defendant. The
Court of Appeal ordered a new trial on the ground
that, on the authority of Motion v. Camroux (b), in
every case where in an action of contract the defence
is set up that the defendant was insane when the con-
tract was made, it is necessary, in order to succeed in
this defence, to show that, at the time of the contract^
such insanity was known to the plaintiff.

In the judgments delivered in the Court of Appeal
by Lord Esher, M.R., and by Fry, L.J., many old
cases and authorities were reviewed, and it was stated
that there had been grafted upon the old rule, (yiz.^
that a man could not stultify himself by pleading
his own incapacity), the exception that the contracts
of a person who is non compos mentis may be avoided
when his condition can be shown to have been known
to the plaintiff. The Master of the Rolls, in his
judgment, declined to recognise that there existed

(a) (1892) I Q.B.D. 599. (b) Supra.

76 MENTAL DEFICIENCY

any difference in the law in cases of this sort between
executed and executory contracts, and stated that
any suggestion that there is a difference was not
supported by the authorities.

The principles of the law of contract which must
be applied in order to arrive at a satisfactory con-
clusion upon the question whether a lunatic possesses
capacity to enter into a contract having been set out
above, examination is now made of the authorities
(i.e., decided cases) upon which the decision in The
Imperial Loan Co. v. Stone (a) is said to rest.

The Court of Appeal, in dealing with The Imperial
Loan Co, v. Stone, relied entirely upon Molten, v,
Camroux (b), where the authorities relied upon were
three cases, viz. : — Dane v. Viscountess Kirkwall (c),
Baxter v. Earl of Portsmouth (d), and Browne v. Jod-
drell (e). Upon reference to the facts of these cases,
it is evident that both Baxter v. Earl of Portsmouth (d)
and Dane v. Viscountess Kirkwall (c) were contracts
for necessaries, and that the decision in Browne v.
Joddrell (e) was based upon that in Baxter v. Earl of
Portsmouth (d).

It would appear, therefore, that the cases Molton v,
Camroux (b) and The Imperial LoaH Co. v. Stone (a)
were wrongly decided, inasmuch as the facts of these
cases differ fundamentally from those of the cases
upon which the Court relied as authority for its
decision. The facts of the cases referred to are as
follows : —

Dane v. Viscountess Kirkwall (f).

In this case it was held that in order to con-
stitute a defence to an action for use and occu-
pation of a house (i.e., a necessary) taken by the
defendant under a written agreement at a stipu-
lated sum per annum, it is not enough to show

(a) Supra. (b) Supra. (c) (1838) 8 C. & P. 679.

(d) Supra. (e) Infra. (f) Supra.

AND THE LAW OF CONTRACT 77

that the defendant was a lunatic and that the
house was unnecessary for her, but it must be
shown also that the plaintiff knew this and took
advantage of the defendant's situation ; and,
if that be shown, the jury should find for the
defendant ; and they cannot, on these facts,
find a verdict for the plaintiff for any sum smaller
than that specified in the agreement. Pat-
teson, J., says (a) " It is not sufficient that it
be shown that Lady Kirkwall was of unsound
mind, but you must be satisfied that the plaintiff
knew it and took advantage of it." The rent
was exorbitant and evidence was given of the
knowledge of the plaintiff that the defendant
was insane. Verdict was given for the defendant.

Baxter v. Earl of Portsmouth (b).

In this case a tradesman supplied a person with
goods suited to his station in life and, afterwards,
by an inquisition taken under a commission of
lunacy, that person was found to have been
lunatic before and at the time when the goods
were ordered and supplied. It was held that
this was not a sufficient defence to an action for
the price of the goods, the tradesman at the time
when he received the orders and supplied the
articles not having any reason to suppose that
the defendant was a lunatic.

Browne v, Joddrell (c).

This was an action on a contract for necessary
work and labour and for goods sold and delivered.
It was held by the Court of King's Bench that
it is no defence that the defendant is of unsound
mind unless the plaintiff knew of, or in any way
took advantage of his incapacity, in order to

(a) 8 C. & p. at p. G85. (b) (1826) 5 B. & C. 170.

78 MENTAL DEFICIENCY

impose upon him. Lord Tenterden, in delivering
judgment in this case, rehed entirely upon Baxter
V. Earl of Portsmouth (a) — a case of necessaries —
no other authority was cited.

Pollock, B., in Molton v. Camroux says that the
Court in Baxter v. Earl of Portsmouth laid down the
same rule as in Browne v. Joddrell, and that the
explanation for the Court's doing this would seem to
lie in the fact that both were cases of necessaries (b).

Other relevant cases which appear to have been
ignored by the Court in Molton v, Camroux but were
referred to by counsel for the defence were as follows :

Williams v, Wentworth (c).

This was a case where necessaries having been
supplied to a lunatic, the Court held that the
law will in such cases raise an " implied con-
tract " against the lunatic or his estate. It
appears from the judgment of the Master of the
Rolls that the '' implied contract " raised by the
law is so raised because a lunatic is incapable
of contracting. The following words of the
Master of the Rolls show that the law supplies
the capacity to contract which the lunatic lacks :
— " A debt is constituted by reason of an obliga-
tion, which, in such cases, the law will impose" (d)

Howard v. Earl of Digby (e).

In this case the House of Lords held that a lunatic
cannot bind himself by bond or by will : a
lunatic cannot release a debt by specialty :
neither can he be a cognizor in a statute merchant,
staple, a judgment, warrant of attorney, or any
other securitv. A clear distinction was drawn
by the Lord Chancellor between cases of neces-
saries and other cases.

(a) Supra. (b) 2 Exch. p. 502. (c) (1842) 5 Beav. 325.

(d) 5 T3eav. 329. (e) (1834) 2 Cl. & Fin. 634.

AND THE LAW OF CONTRACT 79

In The Imperial Loan Co. v. Stone (a) two cases
were referred to where the Courts were required to
determine whether the contract of a drunken person
was void or voidable. It was held in Matthews v.
Baxter (b) that the contract of a drunken person is
voidable only, i.e.^ that it is capable of ratification
by the drunken person when he recovers his senses.

Inasmuch as in the opinion of Sir Frederick Pollock
drunken men are, so far as regards their capacity
to enter into valid contracts, on the same footing as
lunatics (c), it is interesting to observe that in Mat-
thews V. Baxter, the Court of Exchequer followed
the decision in Motion v. Camroux. Now, as stated
above, it was held in this case that the contract of
a man too drunk to know what he is about is voidable
only, and not void, and that such contract is there-
fore capable of ratification by him when he becomes
sober. It was argued that the Court was bound by
Gore V. Gibson (d) where a drunken man's contract
was declared by the Exchequer to be "" void alto-
gether," but the Court declined to be bound by Gore v.
Gibson, and held that the decision in Molton v. Cam-
roux (e) constituted authority for the declaration
that the contract of a drunken man who, at the time
of the contract, was incapable of understanding what
he was doing was voidable only, and (presumably)
only so if the other party knew of the drunken man's
condition.

In delivering judgment in Matthews v. Baxter,
Pollock, C.B., said that the doctrine referred to
appears to be in accordance with reason and justice.
He stated also that in cases of necessaries supplied
for the use of a person who is incapable of contracting
the law itself will make a contract for the parties.
The judgment of Parke, B., (which is similar to that

(a) Supra. (b) L.R. 8 Ex. 132.

(d) 13 M. & W. 623. (e) SupVa.

8o MENTAL DEFICIENCY

of Pollock, C.B.) is expressed in the following words : —
'' Where the party when he enters into the contract
is in such a state of drunkenness as not to know what
he is doing, and particularly when it appears that
this was known to the other party, the contract is
void altogether and he cannot be compelled to per-
form it. A person who takes an obligation from
another in such circumstances is guilty of actual
fraud. The modern decisions have qualified the
old doctrine that a man shall not be allowed to allege
his own lunacy or intoxication : and total drunken-
ness is now held to be a defence. Yates v. Brown (a)
Cole V. Rohhins " (b). In the judgment of Alderson, B.,
(which completed the unanimity of the Court) is
expressed the opinion of that eminent Judge that the
party's act in making the indorsement upon the bill
was just the same as if the party had written his name
upon the bill in his sleep, in a state of somnambulism.

Bramwell, L.J., was of the same opinion as Baron
Alderson, for in Drew v. Nunn (c) he said : — " If a
man become so far insane as to have no mind, perhaps
he ought to be deemed dead for the purpose of
contracting."

It should be pointed out that in The Imperial Loan
Co, V. Stone (d) the Court ignored altogether the
principle laid down in re Rhodes, Rhodes v. Rhodes (e)
viz : — that even for necessaries the liability of a lunatic
was based not upon contract at all, but upon an obli-
gation imposed by law analogous to those obligations
which are raised in cases where infants have been
sued for the cost of necessaries supplied to them.

It is remarkable that in The Imperial Loan Co. v.
Stone the important case of in re Rhodes, Rhodes v.
Rhodes was not considered and followed. A careful
perusal of the report of this case shows that the
Judge in the Court below and the Judges in the Court

(a) 2 Stra. H04. (b) Bull N.P. 172. (c) 4 Q.B.D. at p. 669.

(d) Supra. (e) 44 Ch. D. 94.

AND THE LAW OF CONTRACT 8i

of Appeal entertained no doubt that a lunatic could
not enter into a contract, because " his consent would
be a nullity " (a). The words of Lord Langdale, M.R.,
in Williams v. Wentworth (b) w'ere quoted with ap-
proval. The Master of the Rolls said that in the Case
of necessaries the law supplies that which the lunatic
lacks and that this rule rests upon a far better founda-
tion than the rule that a man shall not be allowed
to stultify himself. In the same case the following
words of Mellish, L.J., in re Gibson (c) were referred
to with approval : — " A lunatic cannot contract for
his maintenance, so, whoever maintains him becomes
a creditor by implied contract."

In the judgment of Cotton, L.J., in re Rhodes^
Rhodes v. Rhodes (d) no doubt is left that it was the
opinion of the Court that a lunatic could not himself
contract in express terms. No qualification was made
as to the other party's knowledge of the lunacy.
Similarly, Lindley, L.J., said : — " In re Weaver (e)
a doubt was expressed whether there is any obliga-
tion on the part of the lunatic to pay. I confess I
cannot participate in that doubt. I think that that
doubt has arisen from the unfortunate terminology
of our law owing to which the expression ' implied
contract ' has been used to denote not only a genuine
contract established by inference, but also an obli-
gation which does not arise from any real contract,
but which can be enforced as if it had a contractual
origin. Obligations of this class are called by civilians
' ohligationes quasi ex contractu ' " (f).

It appears to have been assumed that the rule that
a lunatic cannot enter into a contract admitted of an
exception in the case of necessaries : whereas, in fact,
the law does not admit of an exception, but, in
recognition of the fact that a lunatic himself cannot

(a) per Kay. J. 44 Ch. D. at p. 98. (b) 5 Beav. 327.

(e) 21 Ch, D. at p. 615. (f) 44 Ch. D. p. 107.

82 MENTAL DEFICIENCY

enter into a contract, it will raise a quasi contract or
obligation for him on one of two assumptions, viz.,
(i) that, if the lunatic were in possession of his senses,
he would be willing to pay the cost of necessaries
supplied for his use ; (2) that, inasmuch as only
necessaries have been supplied to the lunatic, it is
equitable that he or his estate should bear the cost
thereof.

The ratio decidendi in the cases cited above appears
to have been based on the mere fact that a lunatic
is incapable of coming to that consensus ad idem
without which no contract can be formed.

If this be the law as to necessaries, it applies with
even greater force to contracts alleged to have been
entered into by a lunatic for purposes other than
the supply of necessaries. In other words, inasmuch
as the law deems a lunatic incapable of contracting
even for necessaries, and, accordingly, raises an obli-
gation for him ; it would seem to follow, a fortiori,
that in the case of goods or services which are not
necessaries a lunatic is incapable of binding himself
by contract.

Further, it will be observed also that in none of the
above-mentioned systems of foreign law is it necessary
that the person dealing with the lunatic must be
aware of the insanity in order to render the contract
void. In the Common Law of England, however,
by the decision in The Imperial Loan Co. v. Stone (a),
an exception to this universal doctrine of incapacity
seems to have been established, inasmuch as insane
persons are declared to be bound by their contracts
unless the other parties to such contracts knew or
had reason to believe that the lunacy existed.

It is remarkable that in the judgment of the Court
in The I^nperial Loan Co. v. Stone (b) no reference
is made to the character or degree of the insanity,
and that both in Molton v. Camroux (c) and in The

(a) Supra. (b) Supra. (c) Supra.

AND THE LAW OF CONTRACT 83

Imperial Loan Co, v. Stone (a) not only was the
question of incapacity ignored by the Court, but
no regard was had to the analogy as to capacity
and consent which exists between contracts of mar-
riage— into which a lunatic may not enter — and
ordinary contracts.

In the three judgments delivered in the Court of
Appeal in The Imperial Loan Co, v. Stone (b) the
above-mentioned fundamental conceptions of the
Common Law were not challenged : they appear rather
to have been ignored. The effect of the decision is
to impose liability upon a lunatic for his alleged
contracts upon grounds presumably either of equity,
or of expediency, or of convenience of trade. Let us
consider these grounds. It is obvious that where A.
enters into a contract with B. (who, as far as A. knows,
is quite capable of managing his own affairs), he might
suffer damage if the contract were nullified subse-
quently owing to the fact that B. was insane at the
time of the transaction. For example, where a
tobacconist receives an order for a consignment of
cigars, and in good faith executes it, it is hard on him
to receive intimation that the person who gave him
the order was non compos mentis, and that, conse-
quently, he cannot recover the price of the cigars.
There is no doubt that he would be entitled to get
back such of the cigars as had not been consumed
and, so far as the estate of the lunatic had benefited,
he would be entitled, on general principles of equity,
to recompense. In any event, there is hardship,
inasmuch as he suffers loss by losing his profit.

Consideration of the following case, however, will
show that the hardship is not confined to the trades-
man. A lunatic who has insane delusions which are
accompanied by animosity against his relatives (quod
frequenter accidit) despatches to a dealer all his family
plate and valuable ornaments, with a letter instructing

(a) Supra. (b) Supra.

84 MENTAL DEFICIENCY

the dealer to dispose of them immediately for what
they will fetch because the owner is in urgent need
of money. The dealer, in good faith, sells the goods.
In this way rare curios or articles of great sentimental
value to the family are disposed of at a price greatly
below their intrinsic value. It would certainly be
very hard for the lunatic (upon recovery), or for his
family, if the goods could not be recovered upon pay-
ment of the price at which they were sold.

Similarly, where A., who has suddenly become
insane, meets an unscrupulous acquaintance (B.) who
induces him to become surety to a bill for an amount
sufficient to exhaust the whole of A.'s fortune : the
bill is discounted (A.'s credit being good), and B.
either absconds with the proceeds or squanders them
and becomes bankrupt. The discounters acted in
good faith and had no knowledge of A.'s insanity.
It would seem to be repugnant to the principles of
equity that the lunatic should be compelled to meet
the bill, (the nature of which he could not ex hypothesi
have understood) and, consequently, be ruined.
The foregoing illustration represents the effect of the
decision in The Imperial Loan Co. v. Stone (a). In
the hypothetical case referred to there is a conflict
of equity, inasmuch as it would doubtless be hard on
the discounters of the bill if they suffered the loss
when acting in good faith (as is the case where the
signature to a bill is discovered to be a forgery), or
where, as in Lewis v. Clay (b) the signature was
obtained by deceit as regards the document signed.
It should be borne in mind, however, that bill dis-
counters are able to make all proper enquiries and to
take steps to protect themselves. Further, if of
two innocent parties, it is requisite that one should
suffer, it is equitable that the Courts should decide
in favour of him who is least capable of protecting
his own interests.

(a) Supra. (b) 67 L.J. Q.B. 136.

AND THE LAW OF CONTRACT 85

The inade(juacy of the decision in The Imperial
Loan Co. v. Stone (a) as a rule of the law of contract
is demonstrated further by a consideration of the
circumstances depending upon contracts entered into
by parties who have not seen each other. Much
business is transacted to-day by means of contracts
entered into, through the medium of the Post Office,
by parties who might have had no opportunity of
meeting personally before the completion of the
contract. A lunatic, although deeply deluded, may
be (as many of them are) capable of writing a rational
business letter accepting an offer made by an adver-
tiser to supply certain goods. The lunatic orders
a large quantity of goods without any regard to his
need or to his means. It would seem to be inequit-
able for the lunatic, upon his recovery, or for his
friends, to be precluded from recovering the money
paid upon restoring the goods. In this connexion
it must be remembered that the rule laid down in
The Imperial Loan Co. v. Stone is absolute; i.e., no
distinction is made in cases where restitutio in integrum
is possible, although in Molton v. Camroux (which was
the authority for The Imperial Loan Co. v. Stone) the
need for such a distinction was not overlooked by the
Court.

Again, in the law relating to the capacity of luna-
tics to marry (b) the English Law does not follow out
to its logical conclusion the rule in The Imperial
Loan Co. V. Stone (c), inasmuch as while it is true
that marriage is something more than a contract
since it results in an alteration of status, the contract-
ual element is the predominant feature of marriage.
In Turner v. Meyers (d) Lord Stowell said : — " Mar-
riage is a contract as well as a religious vow, and, like
other contracts, will be invalidated by the want of con-
sent of capable persons." In Hancock v. Peaty (e)

(a) Supra. (b) See Chapter IV. infra.

(e) L.R. I P. & D. 335.

86 MENTAL DEFICIENCY

it was held that marriage with a lunatic is null
even though the other contracting party was ignor-
ant of the fact. In this case a man married a woman
who was found to be insane at the date of the
marriage, and the marriage was afterwards set aside
at the instance of the woman's guardians, although
the husband established to the satisfaction of the
Court that he was in ignorance of the existence of
the insanity when the ceremony was performed.
The argument turned upon the mere incapacity —
through insanity — of the woman to contract, and
the judgment rests upon clear and intelligible
principle.

Now, if it be contended that the modern rule rests
not upon principle but upon the unfairness which
would be suffered by parties who, having bona fide
entered into contractual relations with a lunatic,
have their contracts upset for want of capacity on
his part, it is difficult to understand why the Common
Law should apply an entirely different doctrine to
infants. No judge or text-writer has yet attempted
to explain why an infant, whose intelligence is limited,
is treated more favourably by the law than a lunatic,
who has no intelligence at all. If a tradesman enter
into a contract with a young man aged twenty years
who appears to the tradesman to be over twenty-one
years of age, the former will have to bear the loss
suffered as a result of his mistake unless the goods
sold were necessaries. The infant may even have
been guilty of deliberate deception, but this fact
does not make the contract valid. The tradesman
acts at his peril.

Inasmuch as the policy of the law of England is
to protect infants, on the ground of their immaturity
of reason, much more is it to be expected that the
law would protect lunatics who have no reason at all,
especially when it is remembered that in no other legal
system is the principle of protecting infants carried

AND THE LAW OF CONTRACT 87

to such an extreme extent as is done in English
Law.

The Roman Law allowed minors (i.e., persons
between fourteen and twenty-five years) to make
contracts without the auctoritas of curators, subject
only to two qualifications, viz., (i) that such contracts
could be challenged within a certain time, (ii) that
restitutio in integrum would be allowed if the contracts
were proved to be detrimental to the minors.

The law of Scotland is almost identical with that
of the Roman Law except that the age of majority
is fixed at twenty-one years. The Scots law allows
a period of four years after the attainment of majority
during which contracts entered into and deeds exe-
cuted by infants may be set aside if such acts be
proved to have been against the infants' interests.

It would seem that in neither Molton v. Camroux (a)
nor in The Imperial Loan Co. v. Stone (b) did the Court
consider the analogy hitherto recognised in the
English Law as existing between the law relating to
lunatics and that relating to infants. In both cases
the opinion of the Court in Thompson v. Leach (c)
where it was stated that '' the cases of lunatics and
infants go hand-in-hand because the same reasons
govern both," was ignored. The following words
of the judgment in Thompson v. Leach would seem to
show that the principle referred to was fully appre-
hended by the Court : — *' It is incongruous to say
that acts done by persons of no discretion shall be
good and valid in the law : such are infants and
lunatics : and it stands with great reason that what
they do should be void, especially when it goes to the
destruction of their estates."

As the law stands at present, therefore, infants
incapacitated from contracting, except for neces-
saries, (Infants' Relief Act, 1874) are not estopped
from pleading their infancy, whereas by the decision

(a) Supra. (b) Supra. (c) Supra.

88 MENTAL DEFICIENCY

in The Imperial Loan Co. v. Stone (a) lunatics are
estopped from pleading non compos mentis unless the
other party knew of the insanity.

In view of the conclusions stated above relative
to the decision in The Imperial Loan Co v. Stone
it is of much significance that the Judicial Committee
of the Privy Council have, upon at least two occasions
since the hearing of the case referred to, refused to
follow that decision.

The first case was decided in 1904, when an appeal
was heard from a judgment of the High Court of
Australia in which it had been held in a suit for the
rectification of a share register that a power of attorney
executed by the plaintiff when he was a lunatic and
did not understand what he was doing was void, and
that the transfer of the plaintiff's shares effected
by the defendant company under such power of
attorney was a nullity although the company had no
notice of the insanity. In stating their lordships'
reasons for refusing leave to appeal. Lord Mac-
Naughten said: — " Their lordships, having had the
advantage of hearing argument on both sides, see no
reason to doubt that the judgment of the High Court
is right " (b). The decision in Thompson v. Leach (c)
was referred to with approval and so also was that
in Elliot V. I nee (d). His lordship proceeded as
follows: — " The risk to a company acting on a power
of attorney is no doubt considerable, but the directors
can protect themselves to some extent by making
careful enquiries — a precaution apparently not taken
in the present case." It is significant that Lord
MacNaughten referred to the power of attorney as
" mere wastepaper," owing to the state of mind of the
person executing it, and he said, " It is difficult to see

(a) Supra.

(b) Daily Telegraph Newspaper Co. v. McLaughlin (1904) A.C. 776.

AND THE LAW OF CONTRACT 89

how anything which rests on it as the foundation
and groundwork of the whole superstructure can
be of any validity, whether the transaction is bene-
ficial to the lunatic or not." From the words of
the judgment quoted, it would seem that the Judicial
Committee appreciated the fact that the company had
no notice of the insanity.

The second case which was argued before the
Judicial Committee was that of Molyneux v. Natal
Land and Colonization Co. (a) where it was held that a
contract made by an insane person is absolutely void,
and not merely voidable, in spite oj the fact that the
other party did not know of the existence of the in-
sanity. While it is true that this case was deter-
mined by reference to Roman-Dutch Law, the follow-
ing words from the judgment of the Judicial
Committee are important, inasmuch as they indicate
the attitude of the Committee to the decision in
The Imperial Loan Co. v. Stone (b) : — " Even if the
law of England had been applicable to the present
case, their lordships are unable to agree with the
majority of the Natal Court that the bond sued upon
would have been enforceable." The decision in
Daily Telegraph Newspaper Co. v. McLaughlin (c)
was referred to with approval.

These decisions would seem to indicate that the
House of Lords would hesitate to uphold the decision
in The Imperial Loan Co. v. Stone (d).

It is significant that in two modern statutes (viz.,
The Indian Contract Act, 1872, and the Sale of Goods
Act, 1893), the legislature has laid it down in un-
mistakeable language that a lunatic is incompetent,
by reason of his mental incapacity, to enter into
contracts (e).

In conclusion, it is submitted that, from the fore-

(a) (1905) A.C. 555. (b) Supra. (c) Supra. (d) Supra,

(e) Act ot 1872, SS. II & 12 ; 56 & 57 Vict. C. 71, S. 2. Mohori Bibee v,
Dharmodas Ohose (1903) L.R. 30 I A. 114.

90 MENTAL DEFICIENCY

going consideration of the relevant facts and principles,
the decision in The Imperial Loan Co. v. Stone (a) as
to the contractual liability of lunatics is inconsistent
both with the Common Law of England and with the
principles of Equity.

In the light of the facts revealed by the research
indicated in the preceding pages, it would appear
that the present law as to contracts alleged to have
been entered into by lunatics during insanity should
be declared to be as follows : —

The alleged contract is void, but, with the object of
preventing the lunatic from benefiting from his acts,
the lunatic or his estate shall be required to make
restitution to the other party where : —

(i) The lunatic has derived benefit as a result of
his act, and

(ii) Where the other party has suffered loss as a
result of the act of the lunatic.

This conclusion would appear to be consistent
both with the principles of the Common Law and
with the rule of Equity that no one is to be enriched
at the expense of another — nemo cum detrimento
alterius locupeltari potest.

Part II. — Lucid Intervals.

The legal position of a lunatic so found by inquisition,
and the law as to acts done in a lucid interval is as
follows : —

It was held in Re Walker (b) that a lunatic so found
by inquisition cannot, while the inquisition is in force,
deal with his property by deed even in a lucid interval.
This ruling is quite consistent with the law as stated
by Coke viz : — that a person who had once been
found non compos mentis by office at the King's suit
was incapable of executing or making any lease,

(a) Supra. (b) (1905) i Cb. 160.

AND THE LAW OF CONTRACT 91

release, gift or feoffment : and that it was the
duty of the Crown to avoid all such acts and to cause
the property affected to be revested in the lunatic (a).

As to acts done inter lucida intervalla by a lunatic
not so found, it was decided in 1603 in Beverley^s case
(b) that all such acts are binding upon a lunatic
whether the person dealing with him has notice of his
lunacy or not. This rule has been followed in Birkin
V. Wing (c) where an action was brought by a pur-
chaser against the executors of a vendor for specific
performance of an agreement to sell an estate, and
the defence was unsoundness of mind and incapability.
It was held that, although one of certain delusions from
which the vendor suffered did to some extent enter
into the contract, yet, inasmuch as there was strong
professional evidence that the vendor perfectly under-
stood the nature of the transaction, the vendor
should, in the circumstances, be called upon specifi-
cally to perform the contract.

In an earlier case (d) it was held that the acts inter
lucida intervalla of a lunatic not so found are valid,
though he may be confined at the time in an asylum
and even under restraint. It was held in Hall v.
Warren (e) that a contract entered into by a lunatic
during a lucid interval is as binding as if made by a
person of perfectly sound mind.

In the practice of the Court of Chancery, where a
person who had entered into a contract was subse-
quently found to be a lunatic from a date prior to the
contract it was competent for the other party to sue
for specific performance, and to obtain decision of the
questions (i) whether the defendant was a lunatic at
the time of the contract, and, if so, (ii) whether he had
lucid intervals, and (iii) whether the contract was exe-
cuted during a lucid interval ; or he might ask, in the

(a) 4 Rep. 126 & 127. 8 Rep. 170a., 338; Co. Litt. 247a; 3 Bac. Abr.
Idiots & Lunatics. " C." and " F "

(b) Supra. (c) 63 L.T. 80.
(d) Selhy v. Jackson. 6 Beav. 192. (e) 9 Ves. 605.

91 MENTAL DEFICIENCY

alternative, to have the contract either performed or
discharged ; and in the latter case, the Court would
allow him, if a vendor, to retain out of the deposit his
costs, charges, and expenses (a).

The practice followed in such cases in the asylums
under the control of the London County Council is to
allow certified lunatics to execute deeds and similar
documents with the consent of the statutory committee
of visitors, provided always that the chief medical
officer of the asylum certifies that at the time of the
execution of the document the lunatic understood the
nature and purport of his act.

Before the Judicature Act various distinctions were
drawn from time to time between different classes of
transactions with the object of determining the civil
responsibility of lunatics in respect of their acts, in spite
of the general rule that the civil acts of lunatics are
void. Thus matters of record (^.g., fines and recov-
eries, recognizances, etc.), were regarded in totally a
different light from acts and contracts in pais. It
was held that " all acts which a man non compos
doth in a court of record shall bind himself and all
others for ever," and further, that alienation by fine
or by recovery was binding even when by office found
the non compos had been brought under the protection
of the Crown (b).

It appears that this rule was frequently disregarded
both at Common Law and in Equity on the ground
that either Court in the exercise of its ordinary juris-
diction could, by the appropriate means, set aside
any transaction which it deemed inequitable (c).

In the absence of recent cases dealing with the
matter, it is submitted that, in accordance with the
doctrine which seems to have been followed fairly
consistently in many old cases, the liability of a lunatic

(a) Frost v. Beaven. 17 Jur. 369. Neill v. Morley 9 Ves. 478.

(b) 4 Rep. 124 ; Mansfield's Case, 12 Rep. 123.

AND IHE LAW OF CONTRACT 93

in respect of an act of record would be determined
by equitable considerations similar to those which
determine his responsibility for acts in pais.

Part III. — Supervening Insanity and Contracts.

Supervening insanity does not release a person from
his obligations under a contract, unless the nature of
the insanity render the performance of the contract
impossible (a). So that where a dentist who had
contracted to perform a series of dental operations
became insane before the completion of the contract,
it would appear that, on grounds of equity, payment
to the lunatic quantum meruit could be ordered by the
Court.

It would seem that the High Court would, on the
analogy of the relief which it gives in the case of part-
nership, dissolve the relation of master and appren-
tice in the event of the supervening insanity of either
party.

If a solicitor to whom a clerk has been articled
become insane during the continuance and before the
completion of the clerkship, the Court will discharge
the clerk from his duties and allow him to enter into
fresh articles for the remainder of his term of service ;
but the Court will not allow the period during which
the principle has been insane, and before the new
articles are entered into, to be reckoned as part of his
requisite period of service (b).

The difficulties which formerly stood in the way of
the application of other remedies have now been re-
moved by the provisions of Sections 133 {et seq) of the
Lunacy Act, 1890.

Where, for instance, a contract for the sale of
leasehold property had been entered into by a lunatic
before his insanity and had been acted upon so as to

(a) Hall V. Warren (Supra), Owen v. Davies, i Ves. 82 ; Pegge v. SkynneTy
I Cox. 23.

(b) Ex parte Turner^ 10 L.J., N.S., Q.B. 356.

94 MENTAL DEFICIENCY

entitle the purchasers to judgment for specific per-
formance, an order was made under Section 137 of the
Lunacy Act, 1890, vesting the property in the pur-
chasers after payment by them of the purchase money
to the lunatic's curator (a).

Nevertheless, insanity supervening after the con-
tract had been entered into and before performance
may prevent the lunatic from doing a personal act in
performance of the contract, e.g., a covenant for quiet
possession (b). Similarly, it would seem that an un-
completed contract of service would be rendered void
by the supervening insanity of the servant, and also,
where the nature of the service is personal, by the
supervening insanity of the master.

The effect of supervening insanity upon the con-
tracts of partnership and of marriage is dealt with
below (see Part VI of Chapter III and Chapter IV.)

Part IV. — Lunacy and the Contract of Agency.

It was held in the case of Drew v. Nunn (c) that the
effect of insanity of either of the parties is not to
invalidate the general law as to principal and agent :
and that, therefore, where a person has held out
another to be his agent, he is bound by the acts of the
agent, although the latter's authority may have been
revoked, if he have not given notice and the agent
wrongfully enters into a contract upon the principal's
behalf. If the principal become insane, he cannot
withdraw the authority which he had conferred upon
the agent. The Court observed that it must be
appreciated that, however much the principal may
suffer innocently through the agent's wrongful acts,
it is also true that some innocent third person who
contracts with the agent may suffer equally with the
principal. It does not lie, therefore, in the principal's

(a) Re Pangani (1892) i Ch. 286.

(b) Cowper v. Harmcr, 57 L. J. Ch. 460.

AND IHE LAW OF CONTRACT 95

mouth, upon his recovery, to say that the innocent
third person shall be the sufferer : although the rule
that until a third person has notice that the agent's
authority was revoked by the principal's insanity he is
entitled to act upon the principal's representations
may be hard upon an insane principal, it must be
borne in mind that lunacy is not a privilege but a
misfortune which must not be allowed to injure
innocent persons.

A lunatic cannot, during the continuance of his
insanity, effectively appoint an agent (a).

In Yo7tge V. Toynhee (b), it was held by the Court of
Appeal that an agency created during sanity will be
determined ipso facto by the lunacy of the principal
or of the agent. Thus, where an authority given to an
agent has, without his knowledge, been determined by
the death or lunacy of the principal, and, subsequently
to such death or lunacy, the agent has, in the belief
that he was acting in pursuance thereof, made a con-
tract or transacted some business with another per-
son— representing in so doing, that he was acting on
behalf of the principal — the agent is liable (as having
impliedly warranted to that other person the existence
of the authority which he assumed to exercise), in
respect of damage occasioned to him by reason of the
non-existence of that authority. In other words, the
law refuses to allow a third party who enters bona
fide into a contract with an agent to suffer as a result
of the termination of the agent's authority owing to
the incapacity of the principal.

It will be observed that, so far as regards agency, the
law follows the old rule that the contracts of a lunatic
are void (c) rather than the law as stated by Littleton
and Coke and modified by MoUon v. Camroux (d).
That is to say, the liability which the law imposes up-

(a) Elliot V. Ince. 7 De G.M. & G. 475.

(b) (1910) I K.B. 215, C.A.

(d) Supra.

g6 MENTAL DEFICIENCY

on an agent who enters into a contract on the behalf
of a principal who has (unknown to the agent) become
insane is based upon the principle that, inasmuch as a
lunatic has no capacity to contract, his agent cannot
do what his principal cannot do.

Part V. — Insanity and the Contract of Insurance.

The principle upon which the maxim caveat emptor is
founded does not apply to the contract of insurance.
Not only must the party proposing the insurance
abstain from making any deceptive representation,
but he must observe the utmost good faith {uberrima
fides). He is required to state not only all matters
within his knowledge which he believes to be material
to the question of the insurance, but all of which in
point of fact are so. An entire disclosure must be
made of all material facts known to the assured.

Although a lunatic is incapable of entering into a
contract of insurance, any person who has an insur-
able interest in his life may insure it. On insuring
the life of a lunatic the fact of his lunacy should be
disclosed, especially if the lunacy be of such kind as
to affect his bodily health (a).

Where a person who having, while compos mentis,
insured his life, dies by his own hand, and the coroner's
jury return a verdict of felo de se, the contract of
insurance is avoided on the ground of public policy,
in consequence of the fact of the death's being oc-
casioned by the deceased's own criminal act (b) ;
but, where tjie act of suicide takes place when the
assured is insane, then, whether he be beneficially
interested in the insurance or not, the policy is not
avoided, unless the contract contain a special con-
dition inserted with a view to meeting such a
contingency (c).

(a) Lindenau v. Deshoroiigh, 3 Man. Y Ry. (K.B.) 45.

(b) Amicable Society v. Bolland, 4 Bli. (N.S.) 194 H.L.

AND THE LAW OF CONTRACT 97

Although a condition in the contract supporting
the insurance in the event of the suicide of the assured
(he being at the date of the taking of his own Hfe
beneficially interested in the policy and of sound
mind) is void for the reason stated above, it would
seem that a condition supporting the insurance in the
event of suicide while under the influence of insanity
and whether or not the assured is beneficially inter-
ested in the policy would not be void.

Notwithstanding the fact that the practice of con-
doning the self-murder of suicides by declaring them
to have been insane at the time of the felony may be
traced historically to a desire on the part of the jury
to prevent suffering by the deceased's relatives and
the shame involved by the suicide's burial at the cross-
roads instead of in the churchyard, it would appear
that it is the common knowledge that the law is as
stated above which influences coroners' juries to-day in
their verdicts, and induces them frequently not to
return a verdict oifelo de se in many cases where there
is, in fact, a strong presumption against the truth of
the suggestion that the deceased was temporarily
insane at the time when he took his own life.

Where a policy contains a condition avoiding the
policy in the event of the assured's committing suicide
or dying by his own hand, the condition applies, in
spite of the fact that the assured may have taken his
life while in a state of insanity, because the moral
condition of mind is not material in such case (a).

Part VI. — Insanity and the Contract of Part-
nership.

The foregoing statements relative to a lunatic's
capacity to contract apply mutatis mutandis to part-
nership.

(a) Borrowdaile v. Hunter, 5 Man. & G. 639. Dufaur v. Professional Life
Assurance Co. 25 Beav. 59^.

98 MENTAL DEFICIENCY

The lunacy of a partner does not of itself dissolve
the partnership unless the articles contain a provision
to that effect : hence, unless steps be taken for
dissolution, the insane partner continues to be entitled
to share the profits and to be liable for the losses of
the firm (a).

The confirmed lunacy of an active partner is a
sufficient ground for the High Court to decree a dis-
solution at the suit of the other partner or partners (b).

By Section 35 of the Partnership Act 1890, disso-
lution of partnership may be obtained by judicial
order, that is to say, where a partner is found lunatic
by inquisition, or is shown to the satisfaction of the
Court to be permanently insane, the Court may
dissolve the partnership.

The High Court will dissolve a partnership at the
suit of a lunatic partner, whether he has been so found
by inquisition or not (c). Where the lunatic has been
so found by inquisition, the committee of the estate,
under the direction of a judge in lunacy, would be
joined (d).

Where the lunatic has not been so found, he may,
(but it does not follow that he will) obtain a final
decree without an application to the jurisdiction in
lunacy (e).

The lunatic sues by his next friend — ^who appears to
be subject to the common risks of next friends. Thus
he may have his proceedings wholly repudiated by the
lunatic, if he should recover his reason, or by the
Court, if the lunatic should be so found by inquisi-
tion (f).

Before the Court will decree a dissolution of partner-
ship on the ground of the insanity of one of the

(a) Sadler v. Lee, 6 Beav. 324. Waters v. Taylor, 2 Ves. & Bea. 299 ; Jones
V. Nov, 2 Myl. & K. 125.

(b) Rowlands v. Evans, 30 Beav. 302.

(d) Beall v. Smith, L.R. 9 Ch. 85.

(e) Light t\ Light, 25 Beav. 248.

(f) Beall V, Smith, Suprg,

AND THE LAW OF CONTRACT 99

partners, it requires to be satisfied by clear evidence
that the insanity exists at the date of the hearing
and that it is probably incurable (a). Proof of the
fact that insanity existed in the past, or that the
partner once suffered from a temporary attack of
insanity, is not sufficient (b).

Before making a final decree, the Court will some-
times direct an enquiry whether the alleged lunatic
is in such a state of mind as not to be able to conduct
the business of the firm in partnership with the
other members of the firm according to the articles
of partnership. It appears, however, that no such
enquiry is necessary where the partner is a lunatic
so found by inquisition (c).

The existence of insanity does not prevent the
dissolution of the partnership upon any of the grounds
provided by the articles, or upon any grounds which
would operate to dissolve it if all the partners were
in their senses (d). Articles of partnership commonly
contain provision for dissolution upon the giving
of a specified notice : and a partnership at will is,
in all circumstances, dissoluble upon notice. Such
notice may be given validly and may be acted upon
although one of the partners may have become insane,
inasmuch as the partner who serves the notice is not
bound " to find understanding " for him that is served.
Notice once served upon a lunatic partner cannot be
withdrawn (e).

Where a partnership has been dissolved as above,
the committee may join and concur in the winding
up (f). The date from which dissolution will be
decreed is governed by the ordinary law relating to
partnership. A simple method of dissolution is

(a) Kirby v. Carr, 3 Y. & C. 184 ; Dibbins v. Dibbins, 44 W.R. 595.

(b) Pearce v. Chamberlain^ z Ves. 35.

(d) Jones v, Lloyd, 18 Eq. 265.

(e) Jones v. Lloyd, Supra.

(f) Lunacy Act, 1890, sees: 119 & 124.

100 MENTAL DEFICIENCY

provided by Sections 119 and 124 of the Lunacy Act,
1890. The judge may, by order, dissolve the partner-
ship and, as in the case above, the committee, or such
other person as may be approved by the judge, may
join and concur in winding up the partnership. It
would appear that under the Lunacy Act, 1890, only
cases of supervening insanity can be dealt with,
and that the powers conferred upon the Court by
Section 1 19 of the Lunacy Act are available only where
the proceedings are not contentious.

Upon the recovery of a lunatic partner, where no
decree of dissolution of partnership has been pro-
nounced, he is entitled to resume his share and direc-
tion of the partnership business. If necessary, an
injunction will be granted, upon the application of the
recovered partner restraining the other partner or
partners from preventing him from transacting the
business of the firm as a partner, and the Court will
restore him to his rightful position in the firm (a).

Part VII. — Lunatics and Necessaries.

In all cases where a lunatic has been supplied with
such goods as come within the scope of the term
" necessaries," a person who has supplied the articles
will have a claim against the lunatic or his estate for
the cost, provided that it be proved to the satisfaction
of the Court that the expense was incurred on the
understanding, either express or implied, that it would
be repaid (b).

The question whether or not a lunatic can be made
liable for the cost of necessaries supplied to him
either under an express contract or under an implied
obligation, was considered by the Court of Appeal
in the case of In re Rhodes, Rhodes v. Rhodes in 1890 (c).
It is unnecessary to set out here the circumstances
which gave rise to the action, but it is interesting to

(a) Anon, 2 K. & J. 441, J.V.S. (1894) 3 Ch. 72.

(b) re Bhod^Si i^^qdea v. Rhodes^ Supra. (c) Su^r^

AND THE LAW OF CONTRACT loi

observe that the Court of Appeal approved the rule
which had been laid down in 1663 in the case of
Manhy v. Scott (a) where it was decided that an infant
and, by analogy, a lunatic, is bound to pay for neces-
saries provided for him : that is to say, whenever
necessaries are supplied to a person who by reason of
disability (^.g., infancy or lunacy) cannot himself
contract, the law implies an obligation on the part
of such person to pay for such necessaries out of his
own property. Accordingly, an obligation may be
implied on the part of a lunatic, whether so found or
not, to repay a person who has supplied necessaries
for him, provided always that the necessaries supplied
are suitable to the position in life of the lunatic.

In the case of In re Weaver (b) it was doubted
whether there could exist an implied contract on the
part of a lunatic to pay for necessaries supplied to
him, and the rule was explained by the Court's pointing
out that the doubt arose from the unfortunate ter-
minology of English Law, owing to which the expres-
sion " implied contract " had been used to denote
not only a genuine contract established by inference,
but also an obligation which did not arise from any
real contract, but could be enforced as if it had a
contractual origin. Obligations of this sort are those
which were recognised by the Roman jurists and
were styled by them '' Ohligationes quasi ex con-
tractu.^^

The question of the liability for necessaries supplied
to the wife of a lunatic was considered in the case of
Richardson v. Du Bois (c), where a lunatic's wife gave
orders to a builder for repairs to be effected to the
inside of the lunatic's house. After some of the
repairs had been carried out, the builder became aware
that the husband was a lunatic and was under treat-
ment in an asylum, but he continued to do the repairs
under the wife's directions. The wife paid a portion

(a) I Sid. 112. (b) 21 Ch. D. 615. (c) 5 Q.B. 54.

102 MENTAL DEFICIENCY

of the builder's account but refused to pay the bal-
ance : whereupon the builder sued the husband for
the balance due. The repairs were admitted to be
necessary for the preservation of the house. It
appeared, however, that the wife received from the
husband's estate, and from friends, a yearly income
which was sufficient for all purposes, including the
repairs to the house. It was held that, in these
circumstances, the husband was not liable, because
the authority of a wife to pledge her husband's credit
was no greater in the case of a lunatic than in the
ordinary case of husband and wife where the husband
had made an allowance to the wife for necessaries.

A husband is liable for necessaries supplied to
his wife during his insanity (a), inasmuch as the wife's
authority to pledge her husband's credit for neces-
saries is not a mere agency, but springs from the
relation of husband and wife, and is not revoked by
the bare face of the husband's insanity. Thus, in
Drew V, Nunn (b) where a tradesman had, before a
man's insanity, supplied necessaries to the wife with
the husband's knowledge and approval, the latter was
not allowed upon his recovery to escape payment
of the price of the goods supplied during his lunacy.
A lunatic husband is liable also for moneys advanced
to his wife for the purchase of necessaries, although
she may have a separate income (c).

The foregoing rules are based upon those of the
Common Law relating to the ability of a wife to
pledge her husband's credit for necessaries (d).

By Section 2 of the Sale of Goods Act, 1893, where
necessaries are sold and delivered to a person who, by
reason of mental incapacity or drunkenness, is
incompetent to contract, he must pay a reasonable

(a) Read v. Leggard, 6 Exch. 6^6.

(b) 4 Q.B.D. 66 1.

(d) Maribyv. Scott, i Sid. 112; Montague v. Benedict, 3 B. k. C. 631; Seaton
V. Benedict, 5 Bing. 28.

AND THE LAW OF CONTRACT 103

price therefor. " Necessaries " in this section means
goods suitable to the condition in life of the pur-
chaser and to his actual requirements at the time
of the sale and delivery. In other words, a lunatic
is liable, quasi ex contractu, for necessaries supplied
to him.

The term ** necessaries " has been held to include
all expenses necessarily incurred for the protection
of the lunatic's person or estate, such as the cost of
the proceedings in lunacy (a), in addition to the com-
mon necessaries of life, having regard to the social
status of the lunatic (b). Where in an action for goods
supplied to an infant the plaintiff replied that they
were necessaries, it was held that the question of
" necessaries " or " not necessaries " is one of fact,
and, therefore for the jury : but, like all other ques-
tions of fact, it should not be left to the jury by the
judge unless there be evidence upon which they can
reasonably find in the affirmative (c).

" There is a Common Law liability to repay the
expenses necessarily incurred for the benefit of the
lunatic, whether that liability be a liability upon an
implied contract or not : it is a liability which the
law recognises on the part of the lunatic or lunatic's
estate. ... It is a liability to the person who has
supplied the necessaries," per Fry L, J . in West Ham
Union v. Pearson (d). This case was followed by
in re J . (a person of unsound mind not so found by
Inquisition) (e) where it was held by the Court of
Appeal that the cost of the maintenance of a criminal
lunatic can be recovered by the Crown against pro-
perty to which the lunatic has become entitled, as
being due under an implied obligation to pay for that
maintenance as a necessary.

(a) Stedman v. Hart, Kay 607.

(b) Ryder v. Wombiiell, L.R. 4 Exch. 32 Ex. Ch.

(d) 62 L.T. 638.

(e) (1909) I Ch. 574.

CHAPTER IV

MENTAL DEFICIENCY AND MARRIAGE

Marriage in English Law is more than an ordinary
civil contract, and the exceptional treatment which it
has received in England is due probably to the fact
that until 1858 matrimonial causes were heard in the
Ecclesiastical Courts, where the rules of the Civil or
Canon law had considerable influence. The only kind
of marriage which is recognised by the English law
is one which is essentially " the voluntary union for
life of one man and one woman to the exclusion of all
others " (a).

Marriage with a lunatic so found by legal inqui-
sition is null and void to all intents and purposes
whatsoever, even though it may have been celebrated
during a lucid interval (b).

In the case of a lunatic not so found by legal inqui-
sition, the marriage will be invalidated where consent
is wanting by reason of the incapacity of either of the
parties of comprehending the nature and of fulfilling
the physical conditions of the marriage contract (c).
The absence of consent makes the contract void ah
initio and not merely voidable (d) : for this reason,
it has been held in the English Courts that no sentence
of avoidance is necessary (e).

The existence of mental incapacity at the time of
the marriage must be established by evidence : every-

(a) Re Ullee, The Nawah Nazim of BengaVs Infants^ 53 L.T. 711.

(b) Marriage of Lunatics Act, 181 1. 51 Geo. III. c. 37.

(d) Harford v. Morris, 2 Hagg. Cons. 423.

(e) Elliot V. Chirr, 2 Phillim. 16.

104

MENTAL DEFICIENCY AND MARRIAGE 105

thing is presumed in favour of the marriage (a). The
validity of the marriage is determined by the capacity
of the party at the actual time of marriage, and not
by the state of the party's mind before or after the
marriage (b).

In cases where the degree of mental incapacity
necessary in order to invalidate a marriage has to be
determined, the Court laid down in Harrod v.
Harrod (c) that it is essential that the dii^erence
between the incapacity which arises from actual
insanity and mere dullness of intellect should be
borne in mind.

The incapacity arising from actual insanity must be
such that the party was, at the time of the marriage,
incapable either (i) of understanding the nature of the
contract and the duties and responsibilities which it
creates (d) ; or (ii) of taking care of his own person or
property (e).

The question upon which the Court has to come
to a decision in cases where a marriage is sought to
be set aside on the ground of the insanity of one of
the contracting parties is not, as in many testamentary
cases, one of variety or degree in strength of mind,
with the more or less failing condition of intellectual
power in the prostration of illness, or one of decay
of faculties in advanced age, but one of health or
disease of mind.

" The law rests upon the simple proposition," says
Lord Stowell in Turner v, Meyers (f), " that marriage
is a contract as well as a religious vow, and, like other
contracts, will be invalidated by the want of consent
of capable persons." It is obvious that if any con-
tract more than another is capable of being invalidated

(a) Portsmouth v. Portsmouth, i Hagg. Ecc. 355.

(b) Hancock v. Peaty, Supra.

(d) Durham v. Durhurn. 10 P.D. 80.

(e) Browning v. Reane, 2 Phillim, 69.

(f) I Hagg. Cons. 414.

io6 MENTAL DEFICIENCY AND MARRIAGE

on the ground of the insanity or mental deficiency of
either of the contracting parties, it is the contract of
marriage, inasmuch as it consists in an act by which
the parties bind their persons and their property for
the rest of their Hves.

In Hancock v. Peaty (a) it was decided (i) that where
the Court is satisfied from the evidence brought
before it that the mind of the contracting party was
diseased at the time of entering into the contract,
the marriage must be pronounced to be null and void ;
and (ii) that the Court will not enter into a considera-
tion of the extent of the derangement of the mind.
In the celebrated case of Durham v. Durham (b) the
law upon this important question was carefully
considered by the Court. It was held that a decree
of nullity will not be granted unless the Court be
satisfied that, at the date of the marriage, the respond-
ent was incapable, by reason of insanity, of under-
standing the nature of the marriage contract and the
duties and responsibilities which it creates.

Inasmuch as the contract of marriage is very
simple, it does not require a high degree of intelligence
to comprehend it ; so that, although a party may be
dull mentally or may exhibit peculiarities of conduct
resembling insanity, the marriage will not be annulled,
unless insanity of a pronounced type be proved to
have existed at the time of the marriage. The decisions
in the subsequent cases of Hunter v. Hunter (c) and
Cannon v. Cannon (d) show clearly that, however
strange and insane the conduct of a party may be
even soon after marriage, the Court will not annul
a marriage unless it be fully established that actual
insanity existed at the time of the marriage.

Weakness of intellect, as distinguished from actual
insanity or pronounced mental deficiency, is not a
sufficient ground for invalidating a marriage unless

(a) Supra. (b) Supra.

MENTAL DEFICIENCY AND MARRIAGE 107

fraud also be proved ; and, where fraud is clearly-
proved, weakness of mind may be presumed from the
tender years of the party (a).

There are four classes of persons who may institute
proceedings in the High Court of Justice to set aside
a marriage, on the ground of the insanity at the time
of the marriage of one of the contracting parties.

(i) The contracting party upon recovery.

If however, the contracting party, having re-
covered, take no steps to invalidate the marriage, no
other person may institute proceedings on his behalf (b)

(ii) His committee where the contracting party
is a lunatic so found by inquisition (c).

(iii) Where the contracting party is a minor or a
lunatic not so found by inquisition, a guardian
duly appointed for the purpose (d).

(iv) Where the contracting party is dead, any
person having an interest in the matter (e).

The following statement of the law upon this
matter which is in force in a number of other countries
forms an interesting commentary upon the above
dictum of Lord Stowell (page 105) : —

British Dominions

Scotland, Insanity or intoxication in either of the
parties is an impediment to marriage : if the ceremony
have been performed the marriage may be annulled
upon proof of the existence of the disability.

Ireland. The voluntary consent of both parties
is requisite. Incapacity, e.g., insanity, of either of
the parties to conclude the marriage contract, is a
ground upon which an action for nullity of marriage
may be maintained.

(a) Portsmouth v. Portsmouth^ Supra ; Harford v. Morris^ Supra.

(b) Turner v. Meyers, Supra.

(d) Mordaunt v. Moncrieffe, L.R. 2 Sc. & Div. 374 ; Hancock v. Peaty j Supra.

(e) Browning v. Reane, Supra.

io8 MENTAL DEFICIENCY AND MARRIAGE

Isle of Man. Marriage where one of the parties
is a lunatic at the time of the marriage is null and
void.

Channel Islands. Marriage where one of the parties
is a lunatic at the time of the marriage is null and
void.

British India, (i) Among the Christian communi-
ties in India insanity is an impediment to marriage.

(ii) Under the Mohammedan law, each party to the
marriage contract must be possessed of full mental
capacity and understanding.

(iii) Under the Hindu law, idiots and lunatics are
incapable of marriage for civil purposes only : a
Hindu wife may desert or disobey her husband if he
be insane.

Dominion of Canada. The free consent of both
parties to the marriage is requisite. Upon proof of the
insanity of either of the parties at the time of the
marriage, the Courts may declare the marriage null
and void.

Union of South Africa. Those persons who, on
account of unsoundness of mind, are incapable of
exercising their free will cannot enter into a valid
marriage.

Newfoundland and New Zealand. A marriage may
be annulled upon proof of insanity of either of the
parties at the time of the marriage.

The Commonwealth of Australia. A marriage may
be annulled in any of the States of the Common-
wealth upon competent proof that one of the parties
was insane at the time when the marriage was cele-
brated.

Foreign Countries

Argentine Republic. According to the Civil Mar-
riage Law, insanity of either of the parties at the time
of the marriage renders the marriage altogether void,
and a declaration of its annulment can be demanded

MENTAL DEFICIENCY AND MARRIAGE 109

by the party who was ignorant of the impediment or
by those persons who may have raised opposition to
the celebration of the marriage (a).

Austria. The marriage law is regulated in accord-
ance with the creed to which the candidates for mar-
riage profess themselves. In all cases, however,
mania, insanity, and imbecility are impediments to
marriage (b).

Belgium. A marriage may be objected to on the
ground of the insanity of one of the future spouses, and
if proved to the satisfaction of the Court, the marriage
will be prohibited (c).

Brazil. Persons who for any reason are not
capable of giving their verbal or written consent in an
unequivocal manner are prohibited from marrying (d).

Bulgaria. There is no civil marriage, but parties
to a marriage must not be afflicted with lunacy,
epilepsy, feebleness of mind, or syphilis (e).

Chile. Those who are of unsound mind cannot
contract matrimony, and a marriage celebrated
notwithstanding the existence of this impediment is
null (f).

China. If at the time of the marriage either of the
parties be suffering from insanity and this be not
disclosed to the family of the intended spouse, the
marriage is absolutely null and void.

Cuba. Only such persons as are in the full enjoy-
ment of their reason are capable of contracting
marriage.

Denmark. The two contracting parties must be
in full possession of their reasoning faculties at the
time of the marriage (g).

(a) Ley del Matrimonio Civil, 1889. Arts. 9, 84, 85.

(b) Civil Code of 181 1, Sect. 48, 75.

(d) Decree No. 481 of 14 June, 1890, Chap. II., Sect. 5.

(e) Law of 24 Feb., 1897, and of 7 Feb., 1900, First Part, Tit. I., Art. 186 (5).

(f) Law of Civil Marriage, 10 Jan., 1884, Sect. 2, Art. 4 (5), Sect. 6., Art. 29.

(g) Memorandum Communicated by Danish Government to the Hague
Conference, May, 1900.

no MENTAL DEFICIENCY AND MARRIAGE

France. The proposed marriage may be objected
to on the ground of the insanity of either of the parties.
A marriage contracted without the free consent of the
two spouses, or of one of them, can be avoided only
by the spouses or by that one whose consent was not
free (a).

Germany, Complete incapacity to give a valid
declaration of intention bars a valid celebration of the
marriage : this is the case with mental disorder. A
marriage is null if at the time of solemnization of the
marriage, one of the parties was incapable of man-
aging his or her affairs, or was in a condition of
temporary derangement of his mental activity (b).

Greece. Civil marriage does not exist in Greece.
Marriage is regulated by the Roman and Byzantine
Laws under which two persons of the orthodox
religion may contract marriage by the performance
of the ceremony by a priest of the Greek Church after
the production of a licence given by the Bishop who
must be satisfied that there is no impediment to the
marriage. Insanity is a bar to marriage (c).

Holland. On the ground that lack of consent
vitiates ordinary contracts, the free consent of the
intended spouses is necessary for the validity of a
marriage (d).

Hungary. Persons under an incapacity for legal
action cannot contract marriage. This includes per-
sons who on account of mental disorder or from some
other cause are deprived of the power of discernment
so long as such condition continues (e).

Italy. Marriage cannot be contracted by persons
who are under interdiction owing to infirmity of
mind (f).

(a) Civil Code, Book I., Tit. II., Arts. 174, 180.

(b) Civil Code, Sects. 1304, 1325.

(d) Civil Code, Book I., Tit. V., Art. 85.

(e) XXXI. Gesetz-Artekel vom Jahre, 1894, uber das Ehciecht, II. Abs.,
§ 6; IX. Abs., § 127 (b).

(f) Civil Code, Tit. V, Seq. 2 (61).

MENTAL DEFICIENCY AND MARRIAGE in

Japan. A marriage is invalid if, for any reason,
the intention to contract a marriage between the
parties does not exist (a).

Lttxemburg. Marriage in the Grand Duchy of
Luxemburg has, as regards its legal effect, an essen-
tially civil character. Insanity in either of the
contracting parties is a ground of objection to the
marriage (b).

Mexico. Confirmed and incurable lunacy is an
impediment to marriage (c).

Norway. Mental disease is an impediment to
marriage. A marriage may, at the desire of one of
the spouses, be dissolved, where the other spouse,
at the time of the marriage, without the knowledge
of the first, suffered from mental disease or from
epilepsy (d).

Peru. Mad persons and persons suffering from
mental incapacity are absolutely incapable of contract-
ing marriage. The marriage of such persons is null (e).
Portugal. The contract of marriage is purely civil.
Persons under interdiction on account of lunacy
which has been established by a judgment of the
Court which has become absolute, or which is notori-
ous, may not contract marriage (f).

Roumania. The relatives of the parties proposing
marriage may make formal objection to its taking
place : the insanity of the intended husband or wife
must be proved before the Court (g).

Russia. Marriage of lunatics or persons of
unsound mind is forbidden. A marriage cannot be
legally contracted without the mutual and free consent
of the parties marrying (h).

(a) Civil Code of 1898, Book IV., Ch. III., Sect, i, Sub-Sec II., Art. 778.

(b) Civil Code, Book I., Tit. II., Arts. 174, 180.

(d) Law of 20 August, 1909, Sect. 3.

(e) Civil Code, Sect. III., Tit. III., Art. 142 (10).

(f) Decree No. i of 25th Dec, 1910, Cap. II., Art. 4 (4).

(g) Civil Code, Book I., Tit. V., Ch. III., Art. 155.
(h) Civil Code, Arts. 5, 12, 37, 301, 318.

112 MENTAL DEFICIENCY AND MARRIAGE

Serbia. A marriage with a lunatic or an idiot is
invalid, and ceases to be binding ; the priest who
performed it shall be brought to trial and punished (a).

Spain. According to the civil law, persons who at
the time of contracting the marriage are not in full
possession of their reason cannot contract mar-
riage (b).

Sweden. Previously to marriage a formal betrothal
takes place. The marriage may not take place if
either party before or after betrothal suffered from
epilepsy, insanity, or frenzy (c).

Switzerland. Marriage is prohibited with a lunatic
or with an imbecile. A marriage is null where one
of the spouses was at the time of the solemnisation
mentally diseased or incapable of discernment as a
result of some permanent cause (d).

United States of America (e)

Alabama, Arizona, Arkansas, Colorado, Florida,
Idaho, Iowa, Mississippi, Missouri, Montana, New
Hampshire, New Mexico, North Dakota, Pennsylvania,
South Dakota, Tennessee, and Texas. Marriages of
parties one of whom is an insane person or idiot at the
time of the marriage ceremony are void, but such
marriages may be affirmed after the restoration to
reason of the party who was under the disability.

California, Delaware, Georgia, and Maryland. The
marriage of an insane person is absolutely void.

Connecticut. It is a criminal offence for epileptic,
imbecile, or feeble-minded persons to contract mar-
riage.

District of Columbia and South Carolina. Marriages
of idiots or of persons adjudged lunatic are voidable.

(a) Civil Code, Arts. 69, 74.

(b) Civil Code, Art. 83 (2).

(d) Federal Law of 24 Dec, 1874, Arts. 26, 28 (3), 120 (2).

(e) " Special Report," issued by U.S. Government, on Marriage and Divorce,
1909.

MENTAL DEFICIENCY AND MARRIAGE 113

Illinois. The statute provides that no insane
person or idiot is capable of contracting marriage, and
the Courts have set aside such a marriage after the
death of the party.

Indiana^ Maine ^ Massachusetts^ Nebraska^ and
Rhode Island. Marriages contracted when either
party is insane or idiotic at time of marriage are void.

Kansas. The marriage of an epileptic, imbecile,
feeble-minded, or insane person, except the woman
be over 45 years of age, is prohibited : such mar-
riages are void.

Kentucky and Utah. Marriage with an idiot or
lunatic is prohibited.

Louisiana. Marriages without free consent are
voidable.

Michigan. No person who has been confined in any
public institution or asylum as an epileptic, feeble-
minded, idiot, imbecile, or insane person is capable
of contracting marriage except upon a verified certifi-
cate of complete cure, and of there being no probability
of the transmission of such person's defects to the
issue of the proposed marriage. The marriage of any
such person without such certificate is made a felony.
Marriages of persons who are insane at the time of
the marriage are void.

Minnesota. Marriages of persons who are epileptic,
imbecile, feeble-minded, or insane are criminal, except
where the person so afflicted is a woman of 45 years
of age. •

Nevada. Marriages are voidable where either party
is incapable, for want of understanding, of assenting
thereto, unless there is a voluntary cohabitation after
such incapacity is removed.

New Jersey. A marriage contracted with an
epileptic, insane or feeble-minded person who has
not recovered is criminal. Any person who has been
confined in any public asylum or institution as an
epileptic, insane, or feeble-minded person is prohibited

114 MENTAL DEFICIENCY AND MARRIAGE

from marriage except upon a medical certificate that
he or she has been completely cured of such disease and
that there is no probability that such person will
transmit any such defects or disabilities to the issue
of the proposed marriage.

New York, North Carolina, Oklahoma and Orego,n.
Marriages where either party is incapable of con-
senting for want of understanding are voidable ;
such marriages are void from the time their nullity
is declared by a court of competent jurisdiction.

Ohio. Marriage is prohibited where either of the
parties is an epileptic, or an insane person, or an
imbecile, or an idiot.

Vermont. Marriages in which either party is an
idiot or lunatic are voidable, unless after the restora-
tion of such person to reason the parties voluntarily
cohabited.

Virginia and West Virginia. Marriages of insane
persons are voidable ; such marriages are declared
to be void from the time they shall be so declared by
a decree of divorce or nullity.

Washington. Marriages of epileptics, imbeciles,
feeble-minded, idiots, or of insane persons, or of
persons who have theretofore been afflicted with
hereditary insanity are prohibited, unless the woman
be over 45 years of age.

Wisconsin and Wyoming. No insane person or
idiot shall be capable of contracting a marriage ;
marriages of insane persons or idiots are void.

It will be observed that in each of the eighty-six
states whose marriage laws relating to insanity are
set out above, the marriage of lunatics is either (i)
prohibited, or (ii) declared to be void, or (iii) is void-
able at the option of those persons who are interested.
In Connecticut, Michigan, Minnesota and in New
Jersey the State has made it a criminal offence for a
feeble-minded person to contract marriage.

It will be observed also that while the law of England

MENTAL DEFICIENCY AND MARRIAGE 115

declares by Statute (a) marriage with a lunatic so found
by inquisition to be null and void, even though cele-
brated during a lucid interval, and that in the case of
a lunatic not so found the marriage is void ab initio (b),
the law of many foreign countries, particularly that
of several of the United States of America, extends
the prohibition against, or the declaration of in-
validity of marriages to, persons who are epileptic
as well as to those who are feeble-minded.

Breach of Promise of Marriage.

From the considerations set out above, it would
seem that a lunatic cannot be made legally responsible
for damage (actual or sentimental) caused through
his or her failure to complete a contract of marriage
owing to his or her insanity, whether the disability
existed at the time of the betrothal or occurred
subsequently thereto.

In the first case (i.e., where insanity existed at the
time of the betrothal) there could be no contract
owing to the absence of consent, and, in the second
case {i.e., where insanity occurs subsequently to the
betrothal), the contract is void through impossibility
of performance, owing to the incapacity of the lunatic
to enter into the marriage relation.

According to a case reported in The Times newspaper
on 14th February, 1896, the defendant in an action
for breach of promise of marriage who relies for his
defence upon unsoundness of mind at the time of the
promise must show, not only that he was incapable of
making the promise, but that the other party was
aware of the fact. Even if, however, these facts be
not established, the defendant will be entitled to
judgment if it be proved that he was incapable at
the time fixed for the performance of the promise,

(a) 51 Geo. III., c. 37.

(b") Hancock v. reaty, Supra. Harford v. Morris, Supra.

ii6 MENTAL DEFICIENCY AND MARRIAGE

unless he have committed the breach complained of
while he was sane.

The statement that the defendant's insanity must
have been known to the plaintiff is beside the point
and is based on the unsatisfactory decision in The
Imferial Loan Co. v. Stone (a) which it is submitted
is contrary to authority (see Chapter III) and repug-
nant to the fundamental principle of the law of con-
tract that there must be on the part of both parties a
consensus ad idem.

In the Scotch case oiLiddell v. Easton^s Trustees (b),
the opinion was expressed by the Lord Justice-Clerk
that a breach of promise to marry is justifiable where
the man becomes insane after making the promise.

The mere facts that a party had, prior to making a
promise of marriage, been insane, and had been con-
fined in an asylum, is in itself no answer to an action
in which damages are claimed for a subsequent breach
of the promise (c).

Restitution of Conjugal Rights.

A plea of insanity in the petitioner and of threatened
danger to the respondent as a result of the insanity is
not an answer to a petition for the restitution of
conjugal rights. A husband is not entitled to turn
his lunatic wife out of doors merely because she is
suffering from insanity. He may be bound rather
to place her in proper custody and under proper care
and treatment. In Hay ward v. Hay ward (d) the
husband met a claim on the part of the wife for the
restitution of conjugal rights by a plea alleging her
insanity and certain acts which threatened him with
danger in the future. The wife denied the allegation
of insanity, but she did not explicitly deny the acts

(a) Supra.

(b) (1907) S.C. 154.

(d) I Sw. & Tr., 81,

MENTAL DEFICIENCY AND MARRIAGE 117

alleged. If the wife had been proved to have been
insane, the acts would have been immaterial ; while,
on the other hand, if she had not been insane, her
acts would have barred the relief sought. In these
circumstances, the Court solved the difficulty by
assuming that the acts also had been denied by the
wife.

Nevertheless, while the insanity may be shown to
be such as to render cohabitation unsafe, withdrawal
from cohabitation is not the proper remedy for it (a).

(a) Radford r. Radford, 20 L.T. N.S. 279.

CHAPTER V

Supervening Insanity and Divorce

Where marriage has once been validly contracted,
the usual incidents belonging to it attach and con-
tinue notwithstanding the subsequent insanity of
either party : that is to say, supervening insanity
of itself will not operate as a dissolution of the bond,
nor afford a ground for a decree of dissolution of the
marriage, or of judicial separation (a).

The question whether or not insanity arising during
the marriage state will, in any circumstances, be a
defence to charges of misconduct was considered in
H anbury v, H anbury (b) where it was held that even
if insanity can in any case afford a defence to pro-
ceedings for divorce, it is necessary that the plea
should state that the insanity is lasting and abiding
and that there is no hope of recovery or amelioration,
and that it is not a mere recurrent or intermittent
insanity. Where a husband, who returned to the
conjugal home after a period of confinement in an
asylum, was subject to fits of mania which endangered
the safety of the wife, it was held that she w^as en-
titled to the protection of the Court by the grant of a
judicial separation. The decision in Hanbury v.
Hanbury was based on the fact that at the time the
respondent committed certain acts of cruelty and
adultery he was capable of understanding their nature
and consequences, the jury having been satisfied,
especially on the evidence of Dr. Henry Maudsley,

(a) Hayward v. Hayward, i Sw. & Tr. 8i ; Hall v. Hall, 3 Sw. & Tr. 347.

(b) (1892) P. 22?.

INSANITY AND DIVORCE 119

that the insanity was intermittent : in these cir-
cumstances the Court granted the wife a decree nisi.

In this connexion it is necessary to bear in mind
that the misconduct complained of must be the
consequence of the insanity (a).

In Yarrow v. Yarrow (b) it was held that where a
married woman who had admitted having committed
adultery was subsequently sought to be divorced by
her husband, the guardian ad litem (who was appear-
ing for the wife who was at the date of the action
detained in a lunatic asylum) opposed the petition
on the ground that the wife was insane at the time
of the adultery. In the opinion of the Court the
defence of insanity was not allowable, inasmuch as,
although the wife may have had certain delusions
and was not absolutely of sane mind, she was quite
capable, at the date of the adultery, of appreciating
the character of her acts and the probable conse-
quences thereof, ^.^., that a petition would be brought
for her divorce. In these circumstances, the hus-
band's petition was granted. The decision in this
case depended entirely upon the degree of the insanity.
The President of the Court said that he was by no
means sure that if the respondent were suffering from
insanity of such a degree as would entitle an accused
person to acquittal on an indictment for a crime,
such insanity would constitute a valid defence to a
suit for divorce on the ground of adultery.

As to the legal effect of insanity of one of the
parties to the hearing of a petition for divorce on
the ground of adultery, reference may usefully be
made to the important case of M or daunt v. Mon-
creiffe (c) where it was held unanimously by the
House of Lords that insanity on the part of the
respondent is no bar to proceedings for divorce and

(a) White v. White, i Sw. & Tr. 592 ; CuHis v. Curtis, 1 Sw. & Tr. 192.

(b) (1892) P. 92.

120 INSANITY AND DIVORCE

that the respondent's defence should be conducted
by a guardian ad litem. The case is interesting by
reason of the fact that the House of Lords obtained
the opinions of the judges upon the important question
of principle which was raised. The ratio decidendi
was that if the petitioner were prevented from having
his petition heard, the effect would be that insanity
would of itself be a defence to a charge of adultery
and that this was clearly not the intention of the
Divorce Act, which directed the Court, upon the
petition of the husband in cases of adultery com-
mitted by the wife, to pronounce a decree declaring
the marriage to be dissolved. The House of Lords
refused to allow the insanity of the respondent to
bar or to impede the investigation of the charge of
adultery brought by the petitioner, and sent the case
back with directions to proceed notwithstanding the
insanity of the respondent.

In Hanhury v. Hanbury (a) the President of the
Divorce Court (Sir Charles Butt) stated that the
object of the Divorce Act is not so much the punish-
ment or retribution for a marital offence as the pro-
tection of the party in peril. On this principle, if
it can be shown that the insanity of the husband is of
such a nature as to endanger the safety of the wife
she is entitled to the protection of the Court. Sir
Charles Butt stated also that the law does not entitle
a woman in such a case to have her marriage dis-
solved, but that he would be disposed to hold that
acts of cruelty committed in a fit of mania would
entitle a wife to be legally separated from her husband.

On the question whether insanity of so pronounced
a degree that the party has to be confined in an
asylum or in some other place of permanent detention,
and the disease is such that there is no hope of re-
covery or amelioration such as will allow of the
patient's discharge will be a good defence to a petition

(a) Supra,

INSANITY AND DIVORCE 121

for divorce on the ground of adultery with cruelty,
there is no doubt, since the decision in H anbury v.
H anbury (a), that if the act complained of be com-
mitted during such insanity, the marriage will not
be dissolved. Sir Charles Butt said : — " When a
disease of mind of so pronounced a type seizes upon
a person and he or she has to be incarcerated or
permanently to be placed in confinement, I should
hesitate to say that in regard to an act committed in
such a state of insanity a plea of insanity might not
be an answer."

The Law of England is that the insanity, even of
an incurable type, e.g.^ general paralysis of the insane,
of either a husband or wife, does not, ipso facto, entitle
the other party to a divorce or even to a judicial
separation. Divorce will not in any circumstance
be granted upon the ground merely of the insanity
of one of the parties ; and judicial separation will be
granted only in circumstances similar to those set
out above.

The hope or expectation which operates or has
been operating in the mind of a husband, whose wife
has become insane after having committed adultery,
that he may be released from the marriage by the
death of his wife, may be accepted by the Court as a
valid excuse for, or explanation of, what would
otherwise amount to " unreasonable delay " in filing
his petition for a divorce (b).

With reference to the foregoing statement of the
law of England as to supervening insanity as a ground
for divorce, consideration may usefully be given to : —

(i) The following recommendation of the Royal
Commission on Divorce and Matrimonial Causes with
reference to the question of insanity as a ground for
divorce : —

That insanity should be introduced as a ground for

(a) Supra.

(b) Johnson v. Johnson. (1901) P. 65.

122 INSANITY AND DIVORCE

divorce subject to the following limitations and
conditions : —

(i) The insanity which should form a ground for
divorce should be certified as incurable, and

(ii) The insane spouse should have been continu-
ously confined, under the provisions of the
Lunacy Acts for the time being in force, for
not less than five years.

(iii) The insanity should be found to be incurable
to the satisfaction of the Court.

(iv) This ground should operate only when the
age of the insane person is, if a woman, not
over fifty years, and if a man, not over sixty
years.

(2) A summary of the laws of ninety-one other
countries relating to insanity as a ground for divorce.

British Dominions.

Scotland. Insanity is not a ground for divorce.

Ireland. The only way by which divorce may be
obtained in Ireland is by private Act of Parliament :
insanity is not allowed to be a ground for the passing
of such an Act.

Isle of Man. Insanity is not a ground for divorce.

Channel Islands. The Courts have no power to
grant divorce.

British India, (i) Insanity is not a ground for
divorce among the Christian communities in India —
to whom alone the Indian Divorce Act of 1869 applies.

(ii) Under the Mahommedan Law a husband may
divorce his wife without any misbehaviour on her
part, or without assigning any cause.

(iii) Divorce, in the ordinary sense, is unknown to
the Hindu Law : the Hindus contend that even death
does not dissolve the bond of marriage.

INSANITY AND DIVORCE 123

Dominion of Canada. In none of the provinces
is insanity a ground for divorce.

Union of South Africa. In none of the provinces
is insanity a ground for divorce.

Newfoundland. There is no Court in the colony
which has jurisdiction to pronounce a divorce.

New South Wales. Insanity is not a ground for
divorce.

Dominion of New Zealand. By the Divorce and
Matrimonial Causes Act, 1908 (No. 50 of the Consoli-
dated Statutes of New Zealand), whether the petitioner
is husband or wife, divorce may be obtained on the
ground that the respondent is a lunatic or person of
unsound mind and has been confined in an asylum
or other institution or house in accordance with the
provisions of the " Lunatics Act, 1908," for a period
or periods not less in the aggregate than ten years,
within twelve years immediately preceding the suit
and is unlikely to recover.

Queensland. Insanity is not a ground for divorce.

South Australia. Insanity is not a ground for
divorce.

Tasmania. Insanity is not a ground for divorce.

Victoria. Insanity is not a ground for divorce.

Western Australia. By Act No. 7 of 1912, among
the causes upon which a decree of divorce may be
granted is the fact that the respondent is a lunatic
or person of unsound mind, has been confined in an
asylum or other institution in accordance with the
provisions of the Lunacy Act of 1903 for a period or
periods not less in the aggregate than five years within
six years immediately preceding the suit, and is un-
likely to recover.

Foreign Countries.

Argentine Republic. There is no absolute divorce
on any grounds.

124 INSANITY AND DIVORCE

Austria. Insanity subsequent to marriage is not
a ground for divorce.

Belgium. Insanity subsequent to marriage is not
a ground for divorce.

Bulgaria. Insanity subsequent to marriage is not
a ground for divorce.

Brazil, Cuba and Mexico, Absolute divorce is not
obtainable.

China. Insanity subsequent to marriage is not in
itself a ground for divorce.

Denmark. An administrative divorce may be
obtained on the ground of supervening insanity.

France. Insanity subsequent to marriage is not
a ground for divorce.

The German Empire. By the German Civil Code
of 1900 insanity of three years' duration after the
marriage is an absolute ground upon which a decree
for divorce is granted throughout the German
Empire.

Greece. Insanity is not a ground for divorce.

Holland and Hungary. Insanity is not a ground for
divorce.

Italy. No divorce is permitted upon any grounds.

Japan and Luxemburg. Insanity is not a ground
for divorce.

Nori0ay. Either party to marriage is entitled to
a divorce where, at the time of marriage, the other
party, without the knowledge of the former has
suffered from insanity. Insanity for three years
with no reasonable prospect of recovery is also a
ground for divorce.

Portugal. Divorce may be obtained upon proof of
incurable lunacy three years after the date upon which
insanity has been declared by the competent
authorities.

Peru, Roumania and Serbia. Insanity is not a
ground for divorce.

Russia. Members of the Lutheran Church (other

INSANITY AND DIVORCE 125

than those resident in Finland) may seek divorce
in their Consistorial Courts upon the ground of the
insanity of one of the parties to the marriage.

Spain. No divorce is permitted.

Sweden. One of the grounds for divorce is
insanity of three years' duration which is pronounced
incurable.

Switzerland . By the Civil Code of December, 1907,
divorce may be obtained upon proof of insanity of
a nature such as to render married life unbearable,
and which, after three years' duration, is pronounced
incurable.

United States of America.

Alabama^ Arizona, California, Colorado, Connecticut,
Delaware, District of Columbia, Georgia, Illinois y
Indiana, Iowa, Kansas, Kentucky , Louisiana, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mis-
sissippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York,
North Carolina, Ohio, Oklahoma, Oregon, Rhode
Island, South Dakota, Tennessee, Texas, Vermont,
Virginia, West Virginia, Wisconsin, and Wyoming,
Insanity occurring after the marriage is not a ground
for divorce.

Arkansas. By an act approved on 28 March,
1895, the following ground for divorce was repealed :
— " Where either party shall, subsequently to marriage,
have become permanently or incurably insane."

Florida. On 25 April, 1901, a statute was
enacted making incurable insanity for four years in
either party a ground for absolute divorce. This
statute was repealed on 11 May, 1905.

Idaho. By a statute of 4 February, 1895, per-
manent insanity is a ground for divorce : the insane
person must have been duly and regularly confined
in an asylum of a state for at least six years next
preceding the commencement of the action for divorce,

126 INSANITY AND DIVORCE

and such insanity must appear to the Court to be
permanent and incurable.

North Dakota. By an act approved on 6 March,
1899, incurable insanity after two years' duration was
made a ground for divorce : this was repealed on 15
February, 1901.

Pennsylvania, The husband may obtain an abso-
lute divorce when the wife is a lunatic or non compos
mentis and the petition is brought by any relative
or next friend of the wife.

South Carolina, No divorce is allowed.
Utah. By an act approved on 9 March, 1903,
permanent insanity of one of the parties is a ground
for divorce, provided that the party shall have been
duly and regularly adjudged insane by the legally
constituted authorities of Utah or of some other
State at least five years prior to the commencement
of the action, and that it shall appear to the satis-
faction of the Court that the insanity is incurable.
Washington. Absolute divorce may be granted in
the discretion of the Court where either party is
proved to have suffered for ten years or more from
incurable chronic mania or dementia.

A survey of the foregoing statement shows that
the laws of several foreign non-Catholic countries,
as well as those of New Zealand and of Western
Australia, evince a tendency to regard the contract
of marriage as voidable upon proof of the confirmed
insanity of one of the parties. In at least three of
the North American States the Legislature has re-
pealed, after a short trial. Acts which made the
supervening insanity of one of the parties a ground
for divorce. If, as is proposed by the Royal Com-
mission on Divorce, supervening insanity be made a
ground for divorce in England, it would seem to be
necessary, according to the principles of the law of
contract, to alter the conditions w^hich are commonly
inserted in the contract of marriage. It may be

INSANITY AND DIVORCE 127

inconsistent with public policy for the Legislature
arbitrarily to introduce into a contract of the solemn
nature of marriage and to make retrospective a con-
dition which was not contemplated by either of the
contracting parties at the date of the marriage.

CHAPTER VI

Testamentary Capacity in Mental Deficiency

In many civilised countries the law concedes to every
person the right of determining, by his last will, to
whom the property which he leaves behind him shall
pass. Nevertheless, although the law leaves to a
person much freedom in the disposition of his
property, it has been rightly observed that " a moral
responsibility of no ordinary importance attaches to
the exercise of the right thus given " (a) The in-
stincts and affections of mankind, in the majority of
instances, will lead men to make provision for those
who are the nearest to them in kindred and for those
who in life have been the objects of their affection.
Independently of any law, a man on the point of
leaving the world would naturally distribute among
his children or nearest relatives the property which
he possessed. The same motives will influence him
in the exercise of the right of disposal when secured
to him by law. Hence arises a reasonable and well
warranted expectation on the part of those of a
man's kindred who survive him, that upon his death,
his property shall become theirs instead of being
given to strangers. To disappoint the expectation
thus created and to disregard the claims of relatives
is to shock the common sentiments of mankind and
to violate what all men concur in regarding as a moral
obligation. It cannot be supposed that, in giving
the power of testamentary dispositon, the law has
been framed without regard to these considerations :

(a) Bmiks v. Ooodfellow, L.R. 5 Q.B. 549.
128

TESTAMENTARY CAPACITY 129

on the contrary, if they had stood alone, it is probable
that the power of testamentary disposition would
have been withheld altogether and that the dis-
tribution of property after the owner's death would
have been uniformly regulated by the law itself.
There are, however, other considerations which turn
the scale in favour of the testamentary power. Among
those who, as a man's nearest relatives, would be
entitled to share the property which he leaves behind
him, some may be better provided for than others,
some may be more deserving than others : while
some, either through age, or sex, or physical or
mental infirmity, may stand in greater need of assist-
ance. Friendship and tried attachment, or faithful
service, may have claims which ought not to be dis-
regarded. In the power of rewarding dutiful and
meritorious conduct paternal authority finds a useful
auxiliary, and age secures the respect and attentions
which are one of its chief consolations. For these
reasons the power of disposing of property in anticipa-
tion of death has always been regarded as one of the
most valuable of the rights incidental to the ownership
of property : while there can be no doubt that it
operates as a useful incentive to industry in the
acquisition of wealth and to thrift and frugality in
the enjoyment of it (a).

The law of every civilised country, therefore, has
conceded to the owner of property the right of dis-
posing by will of the whole, or, at all events, of a
portion, of that which he possesses. The Roman
Law, and the law of those European nations which
have followed it, have secured to the lelatives of a
deceased person in the ascending and descending
line a fixed portion of the inheritance. The English
Law, on the other hand, leaves everything to the
unfettered discretion of the testator, on the assump-
tion that, although in some instances caprice, or

(a) Banks v.Goodfellow. Supra,

130 TESTAMENTARY CAPACITY

passion, or the power of new ties, or artful con-
trivance, or sinister influence, may lead to the neglect
of claims which ought to be regarded, yet the in-
stincts, affections, and common sentiments of mankind
may be safely trusted to secure, on the whole, a
better disposition of the property of the dead, and
one more accurately adjusted to the requirements of
each particular case than could be obtained through
a distribution prescribed by the stereotyped and
inflexible rules of a general law.

The absolute and uncontrolled power of testa-
mentary disposition conceded by the law is founded
upon the assumption that a rational will is a better
disposition of a man's property than any which can
be made by the*law itself.

As a logical complement to the unfettered dis-
cretion allowed to a testator in the disposal of his
property after his death, the English Law insists, as
an indispensable condition, upon the possession by
the testator of the intellectual and moral faculties
which are commonly enjoyed by mankind.

In determining whether or not a testator at the
time of making his will was possessed of testamentary
capacity, the Court is influenced by the following
considerations : — There must be, on the part of the
testator (i) a sound mind as well as a memory which
is able to recall the several persons who may be
fitting objects of the testator's bounty, and (2) an
understanding to comprehend the relationship of
the beneficiaries to himself and their respective
claims upon him. By the expression " sound mind "
the law does not mean a perfectly balanced mind,
because, if this were so, no one would be competent
to make a will. The law does not say that a man is
incapacitated from making a will if he propose to
make a disposition of his property while under the
influence of capricious, frivolous, mean, or even
wrongful motives. According to the law of England

TESTAMENTARY CAPACITY 131

(which differs in this respect from the law of many-
other countries), everyone is left free to choose the
person upon whom he will bestow his property after
death, and he is entirely unfettered in the selection
he may think proper to make. In order to gratify
his spite, he may disinherit his children either wholly
or partially and leave his property to strangers, or
he may leave it to charities in order to gratify his
pride. The business of the Courts in any case which
comes before them is to give effect to the expression
of the true mind of the testator, and this involves a
consideration of what is the amount and quality of
intellect which is requisite in order to constitute
testamentary capacity. In recent cases, the Courts
have admitted with some degree of freedom the
evidence of lunacy experts, e.g., in the Marquis of
Townshend's case, Sir Robert Armstrong- Jones, M.D.,
F.R.C.P., the Medical Superintendent of Claybury
Mental Hospital, was called upon to examine a litigant
who was alleged to be insane.

The strict legal view was expressed by Sir J. Hannen
when delivering judgment in Boughton v. Knight
where he said : — " The question of testamentary
capacity is eminently a practical one in which the
good sense of men of the world is called into action,
and it is one which does not depend solely on scientific
or legal definition " (a).

The difficulty of laying down any legal rules as to
testamentary capacity was appreciated by Lord
Cranworth, who, in Boyse v. Rossborough (b) used the
following words : — " On the first head the difficulty
to be grappled with arises from the circumstance that
the question is almost always one of degree. There
is no difficulty in the case of a raving madman or a
drivelling idiot in saying that he is not a person capable
of disposing of property : but between such an extreme
case and that of a man of perfectly sound and vigorous

(a) L.R. 3 p. ^ D, at. p. 67. (b) 6 H.L.C at. p. 45,

132 TESTAMENTARY CAPACITY

understanding there is every shade of intellect, every
degree of mental capacity. There is no possibility
of mistaking mid-night for noon, but at what precise
moment twilight becomes darkness is hard to de-
termine." Hence, in considering this important
question of degree, the law makes considerable allow-
ance for the difference of individual character ; it
disregards eccentricities of manner, of habits of life,
of amusements, of dress, and so on. The law is not
satisfied to apply the layman's test of whether or not
the testator is very different from other men, but it
applies the general test : — Was the testator, at the
time of making the will, labouring under delusion ?
Sir J. Nicholl in Dew v. Clark and Clark (a) says that
a person is under a delusion when he once conceives
something extravagant to exist which has still no
existence whatever but in his own heated imagination,
and wherever at the same time, having so conceived,
he is incapable of being, or at least of being per-
manently, reasoned out of that conception.

On the assumption that a man would naturally
dispose of his property by will for the benefit of his
children unless there existed good reason for his doing
otherwise, the law has always been willing to in-
vestigate the suggestion of a testator's insanity made
by children or other near relatives who have been
disinherited for no apparent reason. Dew v, Clark
and Clark (b) affords a good illustration of this point.
In that case the testator took a long, persistent dis-
like to his only child, a daughter, who, upon the
testimony of all who knew her, was worthy of all love
and admiration, and for whom the father entertained,
so far as his nature would allow, the warmest affection :
but his affection took an extraordinary form : he
desired that his child's mind should be subjected
entirely to his and that {inter alia) she should confess
her faults to him : and because the child did not

(a) 3 Add. Eccl. 7^. (b) Supra,

TESTAMENTARY CAPACITY 133

fulfil his desires and hopes in that respect, he treated
her as a reprobate and an outcast. In her youth he
treated her with great cruelty. He beat her, he used
unaccustomed forms of punishment, and he continued
throughout his life to treat her as if she were the
worst, instead of apparently one of the best, of women.
In the end, he left her with so small a legacy that she
was virtually disinherited. The testator, who was a
medical practitioner, was a man who throughout life
had presented to those who met him in the ordinary
course of business and of social life the appearance
of a rational man, yet, upon the ground that his
conduct towards his daughter could be explained only
by the existence of insanity, the will was set aside
and the property distributed as upon an intestacy.

In other words, it is essential to the exercise of the
power of making a will that the testator shall be
suffering from no disorder of the mind which would
poison the affections, pervert his sense of right, or pre-
vent the exercise of his natural faculties ; that no
insane delusion shall influence his mind in disposing of
his property in such a way as, if the mind had been
sound, would not have been done. This is the
measure of the degree of mental power upon which
the law insists. If, however, the human instincts
and affections, or the moral sense, become perverted
by mental disease ; if insane suspicion or aversion
take the place of natural affection ; if reason and
judgment be lost, and the mind become a prey to
insane delusions calculated to interfere with and to
disturb its functions and to lead to a testamentary
disposition due only to their baneful influence, in any
such case the condition of testamentary power fails,
and a will made in such circumstances will not be
allowed to stand.

Thus, in a Probate action where the sanity of the
testator is in question, the issue is whether or not
the testator was of a sound and disposing mind : in

134 lESTAMENTARY CAPACITY

other words, the fact to be determined is whether or
not the testator was able at the time of making his
will to understand the nature of the act and its effect,
the extent of the property of which he was disposing,
and the claims to which he ought to give heed (a).

It may be observed that the will of an idiot is void :
so also is that of a deaf mute, (who in presumption of
law is an idiot) (b) : but this latter presumption may
be rebutted by evidence that, though deaf and dumb,
the testator was of sound mind and of testamentary
capacity (c).

According to Swinburne, the general rule is that the
will of a lunatic made during his insanity is void (d) ;
thus, where a person of unsound mind purported to
make a will, letters of administration were granted
as if he had died intestate (e) ; but, in this absolute
form, it will be seen that Swinburne's statement is
not an exact account of the law upon this important
matter.

It was held, however, in a recent case that the
will of a lunatic (whether he be so found or not) made
during a lucid interval is valid (f).

It is interesting to note that in 1810 the Prerogative
Court of Canterbury held that, in order that a will
should be valid, it is essential that the testator should
understand the precise nature of the act and its
effect, and that no insane delusions should dominate
his mind so as to overmaster his judgment to such an
extent as to render him incapable of making a reason-
able and proper disposition of his property, or of taking
a rational view of the matters to be considered in
making a will. Moreover, it was held to be neces-
sary that the sound and disposing mind and memory

(a) Banks v.Goodfellow. Supra.

(b) In the Goods of Owston. z Sw. & Tr. 461.

(d) Swinhurne on Wills. Part II. s. 3.

(e) In the Goods of Rich (1892) P. 143.
(I) l7i re Walker. (1905) i Ch, 160.

lESTAMENTARY CAPACITY 135

should exist at the actual moment of the execution
of the will (a). The modern view of the meaning
to be placed upon the words " sound and disposing
mind " is considered below.

In an action heard in 1812 it was held that where
a will was executed in two parts and the testator was
proved to be insane at the date of the execution of
the second part, the first part was valid, but the
second part invalid, inasmuch as the requirements of
the law as to testamentary capacity had been complied
with in the execution of the first but not in that of the
second part (b).

In all cases where the sanity of a testator is in
question, either parol or documentary evidence will
be admitted to show that the will expresses the
deliberate intention of the testator. All statements,
both verbal and in writing, of a testator preparatory
to making a will, as well as his conduct generally in
regard thereto, are of importance with a view to
showing whether or not the testator was in fact
aware of the nature of the act which he was per-
forming (c).

A will executed during insanity does not become
valid upon the subsequent recovery of the testator.
However much he may wish his will to stand, the
testator cannot ratify it upon recovering his sanity :
he must execute another will in which he should, for
safety's sake, revoke all previous wills (d).

A holograph will afhrmed and delivered by a
testator affords strong evidence of his capacity to
make a will (e). Although the evidence of an attest-
ing witness impeaching the validity of the will is
admissible, it must be received with great caution,

(a) BiUingshursi v. Vickers. i Phillim. 187.

(b) Brouncker v. Brouncker, 2 Phillim. 57.

Durling v. Loveland, 2 Curt. 225.

(d) Arthur v. Bokenham, 11 Mod. Rep. 148.

(e) Cartwright v. Cartwright^ i Phillim. 90.

136 TESTAMENTARY CAPACITY

inasmuch as he thus impeaches his own act (a) :
corroboration by other evidence is necessary before
weight can be attached to such evidence (b).

On the same principle as that upon which the law
requires strong evidence of full capacity on the part
of the testator where there exists between him and
the beneficiary under the will certain intimate or
confidential relations, (e.g., medical man and patient ;
parent and child; guardian and ward; spiritual
adviser and penitent ; legal adviser and client).
Even stronger proof of testamentary capacity is re-
quired where there appears to the Court to exist in
the testator some mental weakness which, although
not amounting to absolute incapacity, renders him
liable to be unduly influenced by those around him (c).

Partial Insanity.

Before proceeding to consider the difficult question
of partial insanity, it should be stated that in the
opinion of an eminent judge (Sir J. Hannen), " the
highest degree of mental soundness, if degrees there
be, is required by the law in order to constitute
capacity to make a testamentary disposition, because,
from the nature of the act, it requires the considera-
tion of a larger variety of circumstances than is
required in other acts, e.g., in contracts of buying
and selling and in marriage, for it involves reflection
upon the claims of several persons, who, by nature,
or through other circumstances, may be supposed
to have claims on the testator's bounty, and it in-
volves also the power of considering these several
claims and of determining in what proportion the
property shall be divided among the claimants " (d).
This dictum is representative of the old doctrine of

(a) Bootle v. Blundell, 19 Ves. 494.

(b) Kinleside v. Harrison, 2 Phillim. 449.

(d) L.R. 3 P. & D. at p. 68.

TESTAMENTARY CAPACITY 137

the oneness and indivisibility of the mind which is
considered below.

It is interesting and instructive at this stage to
consider the rules relating to testamentary capacity
obtaining in other systems of law, to which attention
was drawn in Banks v. Goodfellow (a).

The Roman Law — ^the great storehouse of juridical
science — is vague and general. The madman (Jurio-
sus) and the person of defective intelligence {inente
capitis) are declared incapable of making a testa-
ment ; but the authorities are silent as to what
constitutes madness or defectiveness of intelligence
sufficient to prevent the exercise of the testamentary
right.

The Continental codes are equally general in their
terms, merely providing either that persons must
be of sound mind to make a will, or that persons of
unsound mind shall be disabled from doing so. It
seems, moreover, that the older writers appear not
to have been alive to the distinction between partial
and total unsoundness of mind as affecting testa-
mentary capacity : more recently, however, the
question has been mooted by several eminent and
distinguished jurists, but with a marked discordance
of opinion.

M. Troplong, the author of "L^ Droit Civil Exfliqui,^^
in a section entitled '' Commentaire sur les donations
entre vifs et testaments " ; and M. Lacase, in a treatise
entitled "Za Folie considirde dans ses rapports avet
la Capaciti' Civile " have both adopted the doctrine
of the unity and indivisibility of the mind and the
consequent unsoundness of the whole mind if insane
delusion exist anywhere. On the other hand, equally
distinguished writers have maintained the contrary
view. Thus Legrand du Saulle, in a very able work
entitled " La folie devant les trihunanx " contends
that '' hallucinations are not a sufficient obstacle.

(a) Supra.

138 TESTAMENTARY CAPACITY

to the power of making a will if they have exercised
no influence on the conduct of the testator, have not
altered his natural affections, or prevented the ful-
filment of his social and domestic duties : while,
on the other hand, the will of a person affected by-
insane delusion ought not to be admitted if he have
disinherited his family without cause, or Iboked upon
his relatives as enemies, or accused them of seeking
to poison him, or the like. In all such cases, where
the delusion exercises a fatal influence on the acts
of the person affected, the condition of the testa-
mentary power fails : the will of the party is no
longer under the guidance of reason : it becomes the
creature of the insane delusion." Three other jurists
of eminence, viz., M. Demolombe in the " Cours de
Code NapolSon,^^ M. Castlenau in his treatise " Sur
V Interdiction des Alidnes,^^ and Hoffbauer in his work
on Medical Jurisprudence relating to Insanity, have
maintained the doctrine that monomania, or partial
insanity not affecting the testamentary dispositions,
does not take away the testamentary capacity.

Mazzoni, in his work entitled " Instituzione di
diritto civile Italiano " lays it down that " mono-
mania is not an unsoundness of mind which abso-
lutely and necessarily takes away testamentary
capacity, as the monomaniac may have the perfect
exercise of his faculties in respect of all subjects
beyond the sphere of the partial derangement."

In the opinion of many legal and forensic-medical
authorities the power of testamentary disposition
should not be abrogated, in spite of the existence of
mental disease, unless the insanity be general, or of
such a nature that it manifestly incapacitates the
testator from making a rational will. In other words,
modern science has shed so much light upon the true
nature of insanity that the old doctrine of the one-
ness and indivisibility of the mind is no longer re-
garded by pathological-psychologists as satisfactory

TESTAMENTARY CAPACITY 139

where any question has been raised as to the capacity
of the testator.

The modern view of the effect of insanity upon
testamentary disposition is that partial unsoundness
of mind, not affecting the general faculties and not
operating on the mind of a testator in regard to testa-
mentary disposition, is not sufficient to render a
person incapable of disposing of his property by will.
Thus, at a trial as to the validity of a will in favour
of the testator's niece it appeared that the testator
made the will in 1863 ; that he had been under treat-
ment as a lunatic for some months in 1841, and that
he remained subject to delusions that he was per-
sonally molested by a man who had long been dead,
and that he was pursued by evil spirits whom he
believed to be visibly present. These delusions were
shown to have existed between 1841 and the date of
the will, and also between that date and his death in
1865. The evidence as to the testator's general
capacity to manage his affairs was contradictory, but
it was admitted that at times he was quite capable
of making a will. The Court of Appeal held that
the judge was right in directing the jury to consider
whether, at the time of making the will, the testator
was capable of having such knowledge and appre-
ciation of facts, and was free from delusions to such
an extent as would enable him to have a will of his
own in the disposition of his property and to act
upon it : further, that the mere fact of the testator's
being able to recollect things or to converse rationally
on some subjects, or to manage some business, would
not be sufficient to show that he was sane : while,
on the other hand, slowness, feebleness, and eccentri-
cities would not be sufficient to show that he was
insane (a).

The question as to how far the existence of mental
delusions upon a particular matter affects testa-

(a) Banks e. Qoodfelloxv. Supra.

I40 TESTAMENTARY CAPACITY

mentary capacity was considered also in Bonghion v.
Knight (a) where it was held that a man moved by
capricious, frivolous, mean, or even bad motives,
may disinherit his children and leave his property to
strangers : that he may take an unduly harsh view
of the character and conduct of his children. But
the law places a limit beyond which such action will
cease to be regarded as a question merely of harsh,
unreasonable judgment, and beyond which limit
the repulsion which a parent exhibits to his own
child will be assumed to proceed from some mental
defect.

In this connexion an English authority on lunacy
says : — " It is well known to those who are conver-
sant with the insane that in persons who are considered
as labouring under monomania the mind is otherwise
disordered and weakened, though the characteristic
illusion is the most striking phenomenon. The social
affections are either obliterated or perverted : some
ruling passion seems to have entire possession of the
mind, and the hallucination is in harmony with it
and seems to have had its origin in the intense ex-
citement of the predominant feeling : there is always
a selfish desire or apprehension and the illusory ideas
relate to the personal state and circumstances of the
individual. In most cases of exclusive or partial
mental illusion the persons afflicted are abstracted,
absent, incapable of applying themselves to any
occupation, or even of reading with attention : they
either forget the objects of their strongest attach-
ment, or, if they think of them at all, it is only to
accuse them of injustice and cruelty on the most
frivolous pretexts, or the most improbable sus-
picions " (b).

From an examination of the English Law Reports

(a) 3 p. & M. 64.

(b) Dr. J. C. Prichard in " Insanity in Relation to Jurisprudence," Section
VII. p. 69.

TESTAMENTARY CAPACITY 141

there appears to be no doubt that an ordinary lunatic,
%,e,, one who is deficient in his general faculties, does
not possess testamentary capacity. The question
whether partial unsoundness of mind not affecting
the general faculties and not operating upon the mind
of a testator in regard to the particular testamentary
disposition in question is sufficient to deprive a
person of the power of disposing of his property,
presented itself for judicial decision for the first time
in Banks v, Goodfellow (a). In this case the Court
repudiated the old doctrine of the oneness and in-
divisibility of the mind which was enunciated in
Waring v. Waring (b) and followed in Smith v, Teb-
hitt (c), viz : — that any degree of mental unsoundness
must be fatal to the capacity of a testator.

In Smith v. Tebbiit it was held that, if disease
be shown once to have existed in the mind of a testa-
tor, notwithstanding that it is discoverable only when
the mind is addressed to a certain subject to the
exclusion of all others, or that the subject on which
it is manifested has no connexion whatever with the
testamentary disposition before the Court, the testa-
tor must be pronounced incapable. It was decided
also that a diseased state of mind, once proved to
have established itself, will be presumed to continue,
and that the omis of showing that health has been
restored falls upon those who assert it. It appeared
from the judgment of Sir J. P. Wilde that the question
of insanity is a mixed one, partly within the range
of common observation and partly within the range
of special experience, and it is the duty of the Court,
in searching for a conclusion, to inform itself of the
general results of medical observation, and to make
a comparison between the sayings and doings of the
testator at the time when the disease is alleged to
exist and, (i) his sayings and doings at a time when

(a) Supra. (b) 6 Moo. P.O. 341.

142 TESTAMENTARY CAPACITY

he was sane, or the sayings and doings of those sane
persons whose general temperament and character
bear the closest resemblance to his own : and (ii) the
sayings and doings of insane persons (a).

In Smith v. Tehhitt (b) the argument used was as
follows : the Law of England permits a large exercise
of volition in the disposal of property after death,
but it requires, as a condition, that this volition should
be that of a mind of natural capacity, not unduly
impaired by old age, ^enfeebled by illness, or tainted
by morbid influence. Such a mind is known to the
law as a " sound and disposing mind." Consequently,
it was argued, if the mind be disordered in any one
faculty, if it labour under any delusion arising from
such disorder, though its other faculties and functions
remain undisturbed, it cannot be said to be sound :
such a mind is consequently unsound, and testamentary
incapacity is the inevitable result.

It is instructive to set out briefly the decisions in
the leading cases prior to Waring v. Waring and to
Smith V, Tehhitt^ in which the law on the subject
of mental unsoundness as affecting the capacity to
make a will has been considered.

(i) In Combers case (c) the judges agreed that
*' sane memory for the making of a will is not
always where the party can in some things
answer with sense, but he ought to have judg-
ment to discern and to be of perfect memory,
otherwise the will is void."
(ii) In the Marquis of Winchester's case (d), it was
decided that by the law it is not sufficient that
the testator be of memory, when he makes
the will, to answer familiar and usual ques-
tions, but he ought to have a disposing memory,
so as to be able to make a disposition of his
estate with understanding and reason.

(a) I P. & D. at. p. 400 et seq. (b) Supra.

TESTAMENTARY CAPACITY 143

(iii) In Greenwood v. Greenwood (a) an action was
brought to recover estates under a will, the
validity of which was disputed, the principal
indication of insanity relied upon being a
strange aversion on the part of the testator
towards his only brother, his heir-at-law, and
a groundless suspicion of the latter's having
attempted to poison him. Lord Kenyon in
charging the jury said : — " I take it a mind
and memory competent to dispose of property,
when it is a little explained, perhaps may stand
thus — having that degree of recollection about
him that would enable him to look about the
property he had to dispose of and the persons
to whom he wished to dispose of it. If he
had a power of summoning up his mind so as
to know what his property was, then he was
competent to make his will."

(iv) In Dew v. Clark and Clark (b) the insane de-
lusion had a direct bearing upon the provisions
of the will. The details of this case having
been given above (p. 132), it is unnecessary
to repeat the facts here : it may be observed,
however, that in cases of this sort, where the
connexion of the delusion with the will is
manifest, the Court has been willing to set
aside the will.

(v) In Cartwright v. Cartwright (c) the will (which
had been made by a person who was undergoing
treatment in a lunatic asylum and who un-
doubtedly was insane both before and after
the making of the will) was upheld on the
ground that it had been made in a lucid
interval.

Sir William Wynne, the then judge of the Preroga-
tive Court of Canterbury, in delivering judgment in
Cartwright v. Cartwright^ said that the strongest and

(a) 3 Curt. App., XXX. (b) Supra. (c) Supra.

144 TESTAMENTARY CAPACITY

best proof which can arise as to a lucid interval is
that which arises from the act itself : if it can be
proved and established that the act is rational and
is done in a rational manner the whole case is proved.
" In my apprehension," he says, " where you are
able completely to establish that a rational act has
been rationally done the law does not require you to
go further and the following citation from Swinburne
states it to be so : — ' If a lunatic person, or one that is
beside himself at some times, but not continually,
make his testament and it is not known whether
the same were made while he was of sound mind and
memory or not, then, in case the testament be so
conceived as thereby no argument of phrensy or folly
can be gathered, it is to be presumed that the same
was made during the time of his calm and clear
intermissions : and so the testament shall be adjudged
good, yea, although it cannot be proved that the
testator useth to have any clear and quiet intermis-
sions at all. Yet, nevertheless, I suppose that if the
treatment be wisely and orderly framed, the same
ought to be accepted for a lawful testament ' (a);
Unquestionably there must be a complete and abso-
lute proof that the party who had so framed it did it
without any assistance. I do not know of any
authority which determines what the length of the
lucid interval is to be, whether an hour, a day, or a
month. All that is required is that it should be of
sufficient length to do the rational act intended. I
look upon it, if you are able to establish the fact that
the act done is perfectly proper, and that the party
who is alleged to have done it was free from the dis-
order at the time, that is completely sufficient (b)."
Whatever may be said for the weight of the author-
ities cited on the preceding pages, it is clear that in
Waring v. Waring (c) and in Smith v, Tehhitt (d) it

(a) Swinburne ii. s. 3. (b) i Philllm. at p 94.

TESTAMENTARY CAPACITY 145

was held that, in order to constitute testamentary
capacity, complete soundness of mind is indispen-
sably necessary : that the mind, though it has various
faculties, is one and indivisible : that if it be disorder-
ed in any one of these faculties, if it labour under any
delusion arising from such disorder, though its other
faculties and functions may remain undisturbed, it
cannot be said to be sound, and that such a mind is
unsound, and testamentary incapacity is the necessary
consequence.

Chief Justice Cockburn in dissenting (in Banks v.
Goodfellow) from the doctrine enunciated in Waring
V, Waring expressed himself in these words : — " The
pathology of mental disease and the experience of
insanity in its various forms teach us that, while on
the one hand all the faculties, moral and intellectual,
may be involved in one common ruin (as in the case
of the raving maniac), in other instances one or more
only of these faculties or functions may be disordered
while the rest are left unimpaired and undisturbed :
that while the mind may be overpowered by delusions
which utterly demoralize it and unfit it for the per-
ception of the true nature of surrounding things,
or for the discharge of the common obligations of
life, there often are, on the other hand, delusions,
which, though the offspring of mental disease, and so
far constituting insanity, yet leave the individual in
all other .respects rational and capable of transacting
the ordinary affairs and of fulfilling the duties and
obligations incidental to the various relations of life.
We readily concede that where a delusion has had,
as in the case of Dew v. Clark and Clark (a) or is
calculated to have had, an influence on the testamen-
tary disposition, it must be held to be fatal to its
validity . . . The question is, whether a delusion
thus wholly innocuous in its results as regards the
disposition of the will is to be held to have the effect

(a) Supra.

146 TESTAMENTARY CAPACITY

of destroying the capacity to make one ... It is
said, indeed, by those who insist that any degree of
unsoundness should suffice to take away the testa-
mentary capacity, that where insane delusion has
shown itself it is always possible, and indeed may be
assumed to be probable, that a greater degree of men-
tal unsoundness exists than has actually become
manifest. But this view, which is by no means
universally admitted, is unsupported by proof and
must be looked upon as matter of speculative opinion.
It seems unreasonable to deny testamentary capacity
on the speculative possibility of unsoundness which
has failed to display itself, and if existing in a latent
and undiscovered form, would be little likely to have
any influence on the disposition of the will. . . Where
in a given case the jury are satisfied that the delusion
has not affected the general faculties of the mind and
can have had no effect upon the will we see no suffi-
cient reason why the testator should be held to have
lost his right to make a will, or why a will made in
such circumstances should not be upheld. In the
case before us two delusions disturbed the mind of
the testator — one that he was pursued by spirits ;
the other that a man long since dead came personally
to molest him. Neither of these delusions had, or
could have had, any influence upon him in disposing
of his property. The will, though in one sense an
idle one, inasmuch as the object of his bounty was
his heir-at-law and, therefore, would have taken the
property without its being devised to her, was yet
rational in this, that it was made in favour of a niece
who lived with him and who was the object of his
affection and regard. In these circumstances we see
no ground for holding the will to be invalid."

It would seem, therefore, that in repudiating in
Banks V. Goodfellow (a) the doctrine of the oneness
and indivisibility of the mind. Chief Justice Cockburn

(a) Supra.

TESTAMENTARY CAPACITY 147

was justified in saying that the doctrine embraced
in the judgment in Waring v. Waring (a) and in
Smith V. Tehhiit (b) was wholly unnecessary to the
decision and that it was not " concluded by author-
ity," inasmuch as in both cases the insanity was
general, i,e.^ not partial, the delusions being multi-
farious and of the wildest and most irrational char-
acter, indicating clearly that the mind of the testator
was diseased throughout.

In Jenkins v. Morris (c) it was laid down in un-
mistakable language that, as a general principle, the
rule is that the delusion from which a testator may
have been suffering at the date of the execution of
the will need not be held fatal even if not wholly
unconnected with the subject matter of the testa-
mentary disposition.

The decision in Banks v. Goodfellow (a) has been
followed by the later and, to some extent, comple-
mentary case of Smee v, Smee (d) where it was held
that a man may be capable of transacting business
of a complicated and important nature involving the
exercise of considerable powers of intellect and yet be
subject to delusions so as to make him unfit to make
a will ; and that, on the other hand, if the delusions
under which a man labours be such that they could
not reasonably be supposed to have affected the
dispositions made by his will the will would be valid.
An important case on partial insanity was heard
by the House of Lords on 17th November, 1919,
when it was held that, although the testator was
admittedly insane, inasmuch as he was at the date
of the execution of the will suffering not from general
insanity but from an intermittent delusion which
did not prevent him from dealing with his property
in a rational manner, he was not incapacitated from
making a will merely because he was insane. Lord

(a) Supra. (b) Supra.

148 TESTAMENTARY CAPACITY

Haldane, in delivering judgment, said that a testator
must be able to exercise a rational apprehension of
what he was doing, and that he must understand the
nature of the act. Whether there was such unsound-
ness of mind as rendered it impossible in law to make
a testamentary disposition was a question of degree.
The decision in Jenkins v. Morris (a) was referred
to with approval (b).

In conclusion, it would appear that, from the
leading cases considered, the law of England to-day-
admits of the rule that any form of insanity does not
per se deprive a man of testamentary capacity :
further, that upon the production of sufficient evidence
that the nature of the insanity is not such that the
testator is incapable of any juristic act whatever,
and that, on the contrary, the testator either made
the will during a lucid interval, or was able, in spite
of his partial insanity, to understand fully the nature
of his act, a will made by such a person of unsound
mind shall not be impeached merely on the ground
of the partial insanity of the testator.

In other words, in the eye of the law a person
suffering from delusions may, in certain circum-
stances, be capable of making a valid will. Each
case has, however, to be dealt with upon its own
merits, and the Courts have not attempted to lay
down any general rule to be followed in cases of
so-called partial unsoundness of mind.

Testamentary incapacity may arise from causes
other than but analogous to actual lunacy, viz.,
from want of intelligence occasioned by defective
organization, or by supervening physical infirmity,
or by the decay caused by advancing age, as dis-
tinguished from mental derangement. In these cases,
although the mental capacity may be reduced below
the normal standard, power to make a will is not

(a) 14 Ch. D. 674.

(b) Sivewright v. Sivewright, ** The Times" Nevjspaper, i8th Nov., 1919.

TESTAMENTARY CAPACITY 149

abrogated if the mental faculties retain sufficient
strength fully to comprehend the testamentary act
about to be done. Thus, Voet in his Commentary
on the Pandects says : — Non sani tantum sed et in
agone mortis positi, seminece ac halhutiente lingua
voluntatem promentes, recte testamenta condunt si modo
mente adhuc valeant (a).

In dealing with this aspect of unsoundness of mind,
reference may usefully be made to certain decisions
in the American Courts. In the case of Harrison v.
Rowen (b) the presiding Judge of the United States
Circuit Court for the district of New Jersey laid down
the law in the following words : — " As to the testa-
tor's capacity, he must, in the language of the law,
have a sound and disposing mind and memory. In
other words, he ought to be capable of making his
will with an understanding of the nature of the
business in which he is engaged. . . It is not neces-
sary that he should comprehend the provisions of
the will in their legal form. . . In deciding upon
the capacity of the testator to make his will, it is the
soundness of the mind and not the particular state
of the bodily health that is to be attended to : the
latter may be in a state of extreme imbecility, and
the testator may possess sufficient understanding to
direct how his property shall be disposed of : his
capacity may be perfect to dispose of his property by
will, and yet may be very inadequate to the management
of other business, as, for instance, to make contracts
for the purchase or sale of property. For most men
at different periods of their lives have meditated upon
the subject of the disposition of their property by
will, and when called upon to have their intentions
committed to writing they find much less difficulty in
declaring their intentions than they could in compre-
hending business in some measure new."

In the case of Den v. Vancleve (c) similar language

(a) Lib, a8, tit. i. S. 36. (b) 3 Wash. 585. (c) 2 Southward, 660.

ISO TESTAMENTARY CAPACITY

is used by the Court in the declaration that the law
means by the expression " a sound and disposing
mind and memory " that a testator need not possess
these qualities of the mind in the highest degree.
The following words, which appear in the judgment of
the Court in Steve^is v. Vancleve (a), show clearly
the view of the American Law on this subject : —
" The testator must be possessed of sound and dis-
posing mind and memory. He must have a memory :
a man in whom the faculty is totally extinquished
cannot be said to possess understanding to any
degree whatsoever, or for any purpose. But his
memory may be very imperfect : it may be greatly
impaired by age or by disease : he may not be able
at all times to recollect the names, the persons, or
the families of those with whom he had been intimately
acquainted : he may at times ask idle questions,
and repeat those which had before been asked and
answered, and yet his understanding may be suffi-
ciently sound for many of the ordinary transactions
of life. He may not have sufficient strength of
memory and vigour of intellect to make and to digest
all the parts of a contract, and yet be competent to
direct the distribution of his property by will. This
is a subject of which he may possibly have often
thought, and there is probably no person who has
not arranged such a disposition in his mind before
he committed it to writing. The question is — are
his mind and memory sufficiently sound to enable him
to know and to understand the business in which he
was engaged at the time he executed his will ? "
The above-stated declaration of the law was adopted
by the American Court in the case of Sloan v. Mit-
chell (b) and is there stated to have been approved
by Chancellor Vroom in the case as to the will of one
Tace Wallace. It appears also to have had the

(a) 4 Wash. 267.

(b) 2 H.W. Green, 563,

TESTAMENTARY CAPACITY 151

sanction of Chancellor Kent in the case of Van Alst v.
Hunter (a).

This important aspect of testamentary capacity
was fully considered by the Judicial Committee of
the Privy Council in the case of Harwood v. Baker (b)
where it was laid down that the standard of capacity
in cases of this sort is the capacity on the part of the
testator to comprehend the extent of the property
to be disposed of and the nature of the claims of those
whom he may be including in his will.

The application of the legal presumption as to the
revocation of lost wills to cases of testators who
become insane subsequently to the execution of the
will was considered in Sprigge v. Sprigge (c) where it
was decided that the presumption that a will which
was in a testator's custody up to the time of his death
and could not be found after the death had been
destroyed by him animo revocandi does not apply
to a case where the testator became insane after the
execution of the will and continued insane until his
death. In such a case it was held that, in the absence
of evidence as to the date of the destruction, probate
should be granted of the contents of the will. Ap-
proval was given to the principle laid down in the
older case of Harris v. Berrall (d) where the testator's
action in having torn her will before she became
insane was admitted as evidence that she had done
this animo cancellandi,

(a) 5 Johnson, N.Y. Ch. Rep. 159.

(b) 4 Moo. P.C. 282.

(d) 1 Sw. & Tr. 153.

CHAPTER VII

Evidence of Insanity

In any action where the civil responsibility of an
alleged lunatic is in question the judge or jury, as the
case may be, must consider the practical question
whether or not the party was capable of managing
his own affairs in the matter in hand (a).

The law presumes every man to be sane until the
contrary is proved. It should be noted, however,
that in the case of a will, it is the duty of the executors
or of any other person setting up the will to prove
that it is the act of a competent testator. For this
reason the law requires the sanity of the testator to
be proved affirmatively in any case where there
exists any dispute or doubt as to the capacity of
the testator (b). . . . On the same grounds, where
a duly executed will has been revoked the com-
petence of the testator to revoke it must be proved (c).

Where a man has been proved or is admitted to
have been insane the law presumes the insanity to
continue until it is proved to have ceased. The
burden of proving that the lunatic has recovered, or
that he had a lucid interval, lies upon the person who
alleges it (d) ; moreover, the law insists that the
weight of evidence in cases where recovery of lucid
interval is alleged shall be the same as that in cases
where insanity is alleged (e). According to Sir

(a) Mannin d. Ball v. Ball. Sm. & Bat. 183 ; Jenkins v. Morris^ 14 Ch.
Div. 674.

(b) Harris v. Ingledeu; 3 P. Wms. 91. 93. Smee v. Smee, 5 P. D. 84.

(d) Waring v. JVaring, 6 Moo. P.C.C. 34.

(e) A-G. V. Parnther, 3 Bro. C.C. 441.

152

EVIDENCE OF INSANITY 153

William Blackstone (a), although an idiot is pre-
sumed to be incurable, insanity is always presumed
to be curable (b). In accordance with the pre-
sumption that insanity is deemed to be curable until
the contrary is proved, in cases where sufficient
medical evidence is adduced to show that the lunatic
cannot recover, the Court will deal with the lunatic's
property for the benefit of persons other than the
lunatic in a manner different from that in which it
would have been dealt with if there had been any
prospect of recovery (c).

The Court of Appeal has expressed the opinion that
this practice ought to be narrowed rather than to be
extended. In the case in point the Court refused to
grant an application made for an order directing an
allowance to be made out of a lunatic's property to
relatives for whom he was under no legal obligation
to provide (d).

Where there has been a considerable lapse of time
since the occurrence of an act the due performance of
which is questioned, ^.g., where the capacity of the
party is impeached, the law will uphold the act in the
absence of strong and cogent evidence to the con-
trary (e). On the same principle, it is presumed that a
person who has prepared or attested the deed of an
alleged lunatic would, if he had been alive at the time
of the action, have sworn that the alleged lunatic was
of sound mind at the date of the execution of the
deed (f).

The Court of Appeal laid down in Banks v. Good-
fellow (g) the important rule that the whole burden
of showing that the testator was competent at the
time of the making of the will lies on the party claim-
ing under the will.

(a) I Bl. Com. 302.

(b) See also Chapter I. on Definition and Classification of Insanity.

(d) Re Evans, 21 Ch. D. 297 C.A. (e) Towart v. ScZiera, 5 Dow. 231,
(f) Towart v. Sellers, Supra. (g) Supra.

154 EVIDENCE OF INSANITY

Evidence of the alleged lunatic's conduct at the
time when the question of the state of his mind is
raised is material and very important, and evidence
of his conduct both before and after the date of the
event which gave rise to the legal proceedings is
relevant (a), although it would seem that evidence of
his conduct at the time carries much more weight
than evidence of his conduct before and after the
event (b).

In a civil action where an act is alleged to be the
act of a lunatic, the facts that the act itself, as well as
the manner of doing it, is rational are strong presump-
tive evidence of the sanity of the doer at the time of
the act. Thus, where the validity of a lease of a
farm held by a man was questioned on the ground
of his having a delusion that he and the farm were
impregnated by sulphur, evidence of his ability to
transact ordinary business was admitted by the
Court of Appeal as evidence of his sanity in Jenkins
V. Morns (c) where Jessel, M.R., said (d) " it must be
recollected that, although a man may believe a farm
to be impregnated with sulphur and not fit for himself
to live in, he may still be a shrewd man of business,
and may even believe that the other party may not
know of the impregnation of the farm with the
sulphur and that in consequence he may get a higher
price for it than if it was known that it was so im-
pregnated."

Evidence of this kind is admissible even when the
subject of the inquiry is under confinement as a
lunatic. Thus, where an inmate of a lunatic asylum
made a will in a rational manner, evidence was ad-
mitted to show that the act was done in a lucid
interval (e).

(a) Beavan v. McDonnell, lo Exch. 184.

(b) Ferguson v. Barrett^ i F. & F. 613.

(d) Ibid. p. 683.

(e) Cartvtright v. CarturigM, 1 Phillim. 90.

EVIDENCE OF INSANITY 155

In all cases such as the foregoing due consideration
must be had to the spontaneity of the act, to its
accord with natural affection and with moral duty,
and to its conformity to past and to subsequent
declarations of intention (a).

Where, however, the chief or only evidence of
insanity is to be derived from the nature of the act
in question, such act must necessarily bear strong
internal indications of irrationality in order to afford
any presumption of the insanity of the doer (b).

The value of the evidence of the alleged lunatic's
conduct before and after the event which gives rise
to the action naturally varies materially in accord-
ance with the nature of the mental infirmit)^ from
which he is actually suffering or from which he is
alleged to be suffering. When the question of a
man's sanity is raised, the Court attaches more im-
portance to the general habits and manner of life of
the alleged lunatic than to any particular acts per-
formed by him, however strange they may appear to
be in themselves ; for, as Dr. Mercier says, " while
it is untrue to say that everyone is insane on one
point or to some extent, it is very nearly true to
say that everyone is insane at some time in his
life " (c).

Thus, where a man took an unduly harsh view of
the conduct of his children and disinherited them and
left his property to strangers, it was held that these
acts may be the result of eccentricity or caprice and
quite consistent with general sanity (d).

The writings of an alleged lunatic, are admissible
in evidence on the issue whether he be sane or not
(e), and in Cartwright v. Cartwright (f) it was held that

(a) White V. Driver^ i Phillim. 84.

(b) Boughton v. Knight, L.R. 3 P. & M. 64.

(d) Boughton v. Knight. Supra.

(e) Bootle v. Blundell, 19 Ves. 494.
0) I Phillim. 90.

156 EVIDENCE OF INSANITY

the handwriting of an alleged lunatic may be of some
value as evidence for or against his sanity.

Evidence may be given also to show that blood
relatives of the alleged lunatic are suffering or have
suffered from insanity. This proposition holds good
certainly in criminal cases where it is sought to prove
that the accused was insane when he committed the
offence (a). It is probable that such evidence would
be admissible also in a civil action (b).

Evidence that an alleged lunatic is treated by his
friends or by his relatives in such a manner as would
serve to indicate that he is regarded by them as being
" strange," or of such abnormal temperament that he
requires to be '^ humoured " with respect to particular
subjects, is admissible on the question of his sanity
only as between the said friends or relatives and the
alleged lunatic, but not as against third parties (c).
Where it is sought to introduce evidence of what the
alleged lunatic himself did respecting such treatment,
evidence thereof is admissible, but not otherwise :
thus, where letters were written to the alleged lunatic,
evidence was admitted to show that they were read
or acted upon by the alleged lunatic (d).

In Greenslade v. Dare (e) it was decided that general
reputation among the inhabitants of the district in
which the alleged lunatic lives is not admissible in
evidence, whether to prove the fact of sanity or to fix
some person with notice of it. Moreover, the evidence
of the alleged lunatic himself is insufficient either to
establish his incapacity or his sanity (f).

With regard to the evidence of medical experts in
cases of alleged lunacy, the general principle is that
the opinions of such medical practitioners as have

(a) R. V. Oxford, 9 C. & P. 525.

(b) M'Adam v. Walker, 1 Dow. 148.

(d) WHoM v. Doe d. Tatham, 1 Ad. & El. 3 (Ex. Ch.)

(e) 20 Beav. 284.

(f) Knight v. Young, 2 Ves. & B. 184 ; Bootle v. Blundell. Supra.

EVIDENCE OF INSANITY 157

made a special study of mental diseases and have
examined the alleged lunatic are admissible in evi-
dence on the question whether he is of unsound
mind (a). The Court refuses, however, to admit as
evidence for or against the existence of insanity of
a particular person the opinion of a medical practi-
tioner as to the existence of facts which he himself
has not perceived (b).

The Lunacy Act, 1890, allows a medical practi-
tioner to certify as insane upon two sets of data ;
that is to say :— (i.) facts observed by himself at the
time of examination of the alleged lunatic and (ii.)
facts communicated by others. Thus, although hear-
say evidence such as (ii.) is excluded by the English
rules of evidence, a medical practitioner is entitled by
Statute to make use of, and in practice makes con-
siderable use of, statements tending to prove the
insanity of the alleged lunatic which were com-
municated to him by persons who could not be called
as witnesses in an action for false imprisonment
brought by a person who had been improperly de-
tained in an asylum under such a certificate.

It is a well-accepted principle of the law of evi-
dence that the question whether the opinions of the
medical witness have been formed on sufficient
grounds is for the jury, or for the Court in Chancery
cases, to decide (c). In the case of In re Dyce v.
Sombre (d) the Lord Chancellor said that the most
satisfactory proof of the recovery from an unsound
state of mind is the conviction of the non-reality of
the delusions which arose from the disease {i.e., the
corrigibility of the delusion). Lord Cottenham made
this statement with the object of showing that, in
spite of the opinions expressed by expert medical
witnesses, the Court must be satisfied from its know-

(a) Martin v. Johnston, i F. & F. 122 ; Lovatt v. Tribe, 3 F. & F. 9.

(b) I Ph. 520; Taylor, 1421 ; Steph. Art. 49.

(d) I Mac. & G. 116.

iS8 EVIDENCE OF INSANITY

ledge of the circumstances of the case that the person
is or is not insane. This view of the Lord Chanceller
is quite in accordance with modern scientific opinion.
An eminent authority on lunacy, Sir Frederick Mott,
K.B.E., M.D., Director of the Pathological Laboratory,
Maudsley Hospital, London, says that conduct is the
only satisfactory test of insanity, and Dr. Mercier
says that " the real test of insanity is the corrigibility
of the defect " (a).

Dr. Mercier says that it is only by conduct that the
state of a man's mind can be known. '' It is im-
possible," he says, " for mind alone to be disordered ;
for feelings and thoughts, mental states and mental
processes, are but the shadows or accompaniments of
nervous states and nervous processes ; and since no
mental change can occur save as the shadow or
accompaniment of a nervous change, so, a fortiori^ no
mental disorder can occur except as the shadow or
accompaniment of a nervous disorder. . . . When
the highest nervous processes are disordered not only
must mind be disordered, but conduct also must be
disordered. Hence, mental disorder cannot exist
alone, but must aWays be accompanied by disorder
of nervous processes and by disorder of conduct." (b).

The finding of a jury on an inquisition of lunacy is
not conclusive evidence of the fact of insanity, still
less is it evidence of the period when the insanity
commenced (c), and the presumption in favour of
insanity which is thus created may be rebutted (d).

The fact that a person who seeks to rebut the
finding attended the execution of the commission
would seem to be immaterial (e).

There seems to be some doubt whether the finding
of a jury at a coroner's inquest is admissible as evidence

(a) Sanity and Insanity p. 125.

(b) Sanity and Insanity p. 103.

(d) Clement v. Rhodes, 3 Add. 37 ; Rodd v. Lewis, 2 Lee. 176.

(e) Re Nesbitt, an alleged lunatic, 2 Ph. 245.

EVIDENCE OF INSANITY 159

of the fact of insanity in civil proceedings, but it is
submitted that, inasmuch as the constitution of the
body holding the inquisition is similar to that of a
jury on an inquisition of lunacy, probably such
evidence would be admissible (a).

In Harvey^ v. R. (b) it was held that the Order of a
Master in Lunacy made under Section 116 of the
Lunacy Act, 1890, reciting that a person is, in the
opinion of the Master, of unsound mind, is admissible,
prima facie, as evidence of the fact of his insanity ;
it seems, however, that the official report of a Chancery
visitor is not so admissible. Thus, where in Roe v.
Nix (c) an action to obtain probate of the will of a
lunatic so found by inquisition, two of the next of kin
opposed probate on the ground of the insanity of the
testatrix at the date of the will, the Chairman of the
Board of Chancery Visitors was examined on behalf
of the defendants, and admitted that the reports
which had been made by himself and by his colleagues
were still in existence, but refused to produce them,
on the ground that he was precluded by Section 186
of the Lunacy Act, 1890, from making them public.
It was held that the reports must be treated as non-
existence and that no order should be made for their
production.

It has been held, however, that the finding of a
jury on an inquisition of lunacy is admissible as
evidence in civil proceedings (d).

Where such a finding is one of insanity, it creates
a presumption in favour of that fact and throws the
onus of proof upon those who contend the contrary (e).

According to Sir Matthew Hale, a lunatic who had
performed any act, whether lawful (e.g., a contract),

(a) Hall V. Warren, 9 Ves. 605 ; Jones v. White, 1 Str. 68.

(b) (1901) A.C. 601.

(d) Sergenon v. Sealey, 2 Atk. 412 ; Faulder v. SiU:, 3 Camp. 126 ; Dane v.
KirkwaU, 8. C. & P. 679.

(e) Snook v. Watts^ 11. Beav. 105.

i6o EVIDENCE OF INSANITY

or unlawful (^.g , a tort), and was known and proved
to have lucida intervalla was presumed to have per-
formed the act in one of those intervals. As to what
amounts to a lucid interval, reference should be made
to Chapter II on '' Definition and Classification."

It is true that the legal test of lunacy differs from the
medical and that the tests of capacity and of irre-
sponsibility on the ground of insanity as adopted by
the English Courts of Law — notably in M'Naughten's
case (a) — have never been acquiesced in by the
medical profession as a whole. With a view to
determining, therefore, whether and to what extent
these different views are reconcilable, it is necessary
in the first place to ascertain at what point the lines
of divergence are to be observed. The two views are
set out below : —

As to legal tests. The modern tendency is to
consider the question of capacity or responsibility
with strict reference to the character of the act which
has to be or has been done.

As to medical tests. There should not be a fixed
test of responsibility by which every case is to be
decided, inasmuch as there are infinite varieties
in the forms and degrees of mental derangement,
and the question of responsibility depends upon
an impartial weighing of every one of the factors
in each case. Mere knowledge of the nature and
quality of an act, and that it is a wrongful act, is
not of itself sufficient to establish the moral (and,
as a consequence, the legal) responsibility of the
actor. The element of self-control enters as well
as the element of understanding, and the right

(a) lo 01. & Fin. 200. The substance of the replies of the judges to the
questions put to them by the House of Lords in this case was to the following
effect : — " To estabhsh a defence on the ground of insanity, it must be clearly
proved that, at the time of the committing of the act, the party accused was
labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing, or, if he did know it,
that he did not know that he was doing what was wrong."

EVIDENCE OF INSANITY i6i

question for cofi^sidcration is the disabling effect of

the particular mental disorder in the particular

circumstances.

The point of divergence of the two views stated
above would seem to be at this " element of self-
control," and reference should be made to the several
forms of insanity as distinguished by medical nomen-
clature which are set out in Chapter II. (a). There
are, however, two types of insanity concerning the
characteristics of which there has been much con-
troversy, viz., " moral insanity " and " impulsive
insanity,^^ and herein will probably be found to lie
the chief difference of opinion in the method to be
adopted for determining the responsibility of the
insane for their acts.

It will be shown below that it is in this very element
of self-control, as applied to the acts of the insane,
that the test of responsibility should be sought. It
is necessary in the first place, however, to bear in
mind what the medical authorities have to say
respecting these less clearly defined phases of insanity
termed " moral insanity " and '^impulsive insanity J^
The modern medical view (b) may be summarised
as follows : — Concerning " moral insanity " it may
be observed that in most of the common forms of
insanity, i.e., those coming generally under the heads
of dementia and mania, alteration of the character
and disposition is followed before long by derange-
ment of the mind as expressed in conduct and, as a
rule, of bodily health as well. But there are cases in
which neither physical nor mental capacity appears
to be affected, and yet the moral sense is perverted
to such a degree that the person is held to be insane.
Whether or not such perversion should be called
" moral insanity " or " moral depravity " must in
most cases be dubious, inasmuch as the one passes

(a) Definition and Classification.

(b) See also Chapter or^ Definition an4 Classification,

1 62 EVIDENCE OF INSANITY

insensibly into the other without any dividing line, and
the difference between them appears to be one only
of degree. This is one of the grounds upon which
the legal and medical tests of responsibility come into
conflict.

'' Impulsive Insanity " is the name given to a
morbid condition of the mind, in which strong or
ungovernable impulse to perform some irrational act
is developed, without delusion or loss of general self-
control. It is not the same thing as a sudden out-
burst of passion which partakes more of the nature
of temporary mania culminating in an explosive act :
in other words, it is the result of general loss of control.
A person suffering from " impulsive insanity " may
consciously resist the impulse and keep it in check
for an indefinite time. He may eventually conquer
it, or it may at last conquer him, in which event the
result is that he obeys its dictates with a perfectly
clear vision of the probable consequences.

These two cases are considered separately. In
the description given of *' moral insanity ^^^ no allow-
ance is made for the fact that although it may be
difficult to determine, even by the medical expert,
at what precise moment the borderline between
" moral insanity " and " moral depravity " has been
crossed, before the Court can pass judgment in any
individual case of alleged insanity the law has to
decide whether this precise moment has or has not
arrived. Moreover, so far as the law is concerned,
this " dividing-line " is not the matter in issue ; the
question is in fact one of capacity or incapacity. It
is manifest that in cases where neither physical nor
mental capacity appears to be affected and yet the
moral sense is perverted, the law must require some
evidence, apart from either common consent or the
dubious surmises of expert medical testimony, to
prove conclusively that the person is insane.

Furthernipre, while it is true thgt both the negligent

EVIDENCE OF INSANITY 163

and the morally depraved person (as distinguished
from the morally dejcciivc)^ while not insane, may be
seized with an ungovernable impulse to do some
irrational act without delusion or loss of general self-
control, there is no disposition either by the Courts
or by the medical profession to credit either of these
persons with irresponsibility, and, consequently, to
excuse them from liability for their acts. It will be
observed that when dealing above with impulsive
insanity (where consideration was given to the
possibility of a man's consciously resisting an insane
impulse temporarily and of his eventually allowing
it to overcome him), there is nothing to indicate that
the communications between mind and brain have
become so disturbed by disease as to make the lunatic
no longer accountable for his actions.

From the foregoing considerations, it is concluded
that responsibility ceases where the actor is no longer
able to understand the nature and consequences of
his act, or where he is no longer under such self-
control as enables him to be capable of exercising
the power of choice. The test, therefore, which should
be applied where irresponsibility through mental
disease is alleged, is the existence or non-existence of
the power of control : the question to be answered
is — does the actor possess such control of his reasoning
faculties as enables him to understand what is the
nature and what will be the probable consequences
of his act ? That is to say — Is his mind under such
control that he is capable of determining his course
of action according to the rules of rational life ?
Inasmuch as responsibility is a consequence of the
ability of the mind to act freely, it follows that where
delusion has occupied the seat of reason, where the
will is merely the creature of suggestion, and where
capacity to control is removed, a state of irresponsi-
bility has set in.

While it is true that difficulties of any degree may

1 64 EVIDENCE OF INSANITY

have to be faced in determining whether a given act
was voluntary or not, it must be borne in mind that
insanity is essentially a question of fact, and that
the burden of proof is upon the party who alleges in
a Court of Law the existence of abnormal conditions.
This does not mean that it is necessary that theories
of psychology, normal or abnormal, should be made
propositions of law. The errors of common sense are
more tolerable, upon the whole, than those of specula-
tion : at all events, they may be corrected more
easily.

APPENDIX (I.)

SUMMARY OF CHIEF POWERS AND DUTIES

OF LUNACY AND MENTAL DEFICIENCY

AUTHORITIES IN ENGLAND.

1. The Board of Control (lately the Commis-

sioners in Lunacy).

2. The Minister of Health.

3. The Secretary of State for Home Affairs.

4. The County or County Borough Council.

5. The Asylums and Mental Deficiency Com-

mittee OF THE County or County Borough
Council.
The Metropolitan Asylums Board.

7. Poor Law Guardians.

8. The Lord Chancellor.
The Judge in Lunacy (Lord Justice of Appeal).
The Masters in Lunacy.
Police Court Magistrates.
Justices of the Peace.
Judge of County Court.
Chancery Visitors.
The Board of Education.
The Local Education Authority.

II
12

IS
16

I. The Board of Control, as now constituted, is
composed of not more than fifteen Commissioners, and,
of these, twelve are to receive remuneration. Four
of the number must be practising barristers, or solici-
tors, of five years' standing, whilst at least two of the
Board must be women, one of whom must be a paid
Commissioner.

165 J^

i66 APPENDIX (I.)

The chief duties of the Board of Control are the
general supervision of the administration of the
Lunacy Acts, 1890-1911 and of the Mental Deficiency
Act, 191 3, and the inspection of the places or in-
stitutions in which persons subject to be dealt with
under these Acts are detained.

The Board is empowered, with the approval of the
Lord Chancellor, to prescribe by Rules the books to
be kept in institutions for lunatics and houses for
single patients ; the entries to be made therein ; the
returns, reports, notices, etc. to be sent to the Board
or to any authority or person, and the persons by
whom, the times within which, and the manner in
which such returns, reports, notices etc. are to be
made or sent. Such Rules must be laid before Par-
liament : they must be judicially noticed, and they
have effect as if enacted by the Act.

2. The Minister of Health has certain duties relat-
ing to lunacy and mental deficiency administration,
the chief of which are : —

{a) Under the Lunacy Acts,

(i) The approval of agreements to unite for lunacy
purposes entered into by two or more local
authorities.

(ii) The approval of contracts between two or more
local authorities or between the proprietors of
licensed houses and local authorities for the
housing of pauper lunatics.

(iii) The approval of contracts for the purchase of
land, and for the provision of mental hospitals
by lunacy authorities : also the approval of
plans of asylum buildings, and of additions and
alterations thereto.

(iv) By Section 14 of the Lunacy Act, 1891, any
questions relating to lunatic asylums or to the
maintenance of lunatics arising between any

APPENDIX (I.) 167

local authorities under the Lunacy Act, 1890,
and any boroughs not being local authorities
under that Act, and any visiting Committees
or any two or more of such parties respectively,
may be referred to an arbitrator appointed by
the parties, or, if the parties cannot agree upon
an arbitrator, bv the Minister of Health.

(b) Under the Me^ital Deficiency Act^ 1913-

(v) If the Board of Control report to the Minister
of Health that a local authority have made
default in the performance of any of their
duties under this Act, the Minister of Health
may . . . upon being satisfied that such de-
fault has taken place, by order require the local
authority to do such acts for remedying the
default as he may direct.

(vi) The Minister of Health may, by order, direct
that joint action shall be taken by any two
or more local authorities for the purpose of the
exercise and performance of their duties under
this Act (Section 29).

(vii) Under Section 37 (i) of the Mental Deficiency
Act, 191 3, on the application of the local
authority for any area comprising the whole
or any part of a poor law union, the Board of
Control may, subject to the consent of the
Minister of Health, if satisfied of the special
fitness for the detention, care and training of
defectives of any premises provided by the
Board of Guardians, approve the premises
for the reception of defectives. The Board
of Guardians, in their capacity as managers,
may, subject to the consent of the Minister
of Health, contract with local authorities for
the reception of defectives into such premises.

i68 APPENDIX (I.)

3. The Secretary of State for Home Affairs retains
the following duties under the Lunacy Acts and
under the Mental Deficiency Act, 191 3 : —

(i) The issue of warrants for the admission into
County or Borough Asylums of lunatics dealt
with under the Criminal Lunatics Act,
1884.

(ii) The control and management of criminal
lunatic asylums.

(iii) The Secretary of State may direct that a
defective who is undergoing imprisonment
shall be removed to an institution or placed
under guardianship (Mental Deficiency Act,
191 3, Section 9.)

4. The County Council or County Borough Council.
The Lunacy Act, 1890, places upon the County Council
or the County Borough Council as the case may be,
the duty of providing adequate accommodation for
(i) the lunatics notified by the Poor Law Guardians,
and (ii) other lunatics for whom the County is respons-
ible. If the Board of Control report to the Minister
of Health that the Council has failed to satisfy the
requirements of the Act as regards asylum accom-
modation, the Minister of Health may require the
Council to provide accommodation in such manner
as he may direct, and may proceed by mandamus^ if
necessary, to enforce the requisition.

Under the Mental Deficiency Act, 191 3, similar
duties so far as regards accommodation, supervision,
and guardianship are placed upon these bodies in
respect of those persons within the County or Borough
area who have been ascertained to be subject to be
dealt with under the Act, with the additional duty of
ascertaining what defective persons are subject to be
dealt with under the Act. (See also '^ The Asylums
and Mental Deficiency Committee "),

APPENDIX (I.) 169

5. The Asylums Committee or the Asylums and
Mental Deficiency Committee is a Committee appointed
by the County Council or County Borough Council
under the provisions of the Lunacy Act, 1890, and of
the Mental Deficiency Act, 191 3, through whom the
local authority performs its statutory duties in regard
to (i) the insane and (ii) mentally defective persons
for whom it is responsible ; that is to say,

(i) The control and management of the County
or Borough lunatic asylums or mental
hospitals (a), and the housing and treatment,
by contracts with other authorities, of lunatics
for whom there is no accommodation available
in the County or Borough asylums or mental
hospitals.

(ii) The ascertainment of what persons within the
local area are defectives subject to be dealt
with under the Mental Deficiency Act, 191 3.

(iii) The provision of suitable supervision, in-
stitution accommodation, or guardianship for
defectives in accordance with the provisions of
the Mental Deficiency Act, 191 3.

Upon this Committee also is laid the important duty
of discharging pauper lunatics from the asylums or
mental hospitals (b).

As regards lunatics the County Council or County
Borough Council (which acts through its Statutory
Committee) is responsible to find accommodation for
those patients only who are duly certified to be fit
and proper persons for treatment in a public asylum
or mental hospital. With very few exceptions all
the lunatics referred to are dealt with, in the first
instance, by the Poor Law Guardians, who apply to the

(a) The county of London and certain other county authorities have adopted
the term " mental hospital " in lieu of the term " asylum."

(b) Patients admitted to the public asylums and mental hospitals as
" paupers " may, upon arrangement made by their friends or relatives with
the Committee, be classified as " private patients."

170 APPENDIX (I.)

Statutory Committee for accommodation in a County
asylum or mental hospital. In the County of London
application for accommodation is made in suitable
cases (i.e., where the lunatic is chronic and harmless)
to the Metropolitan Asylums Board who have pro-
vided a certain amount of accommodation for such
lunatics as can be detained in a workhouse.

6. The Metropolitan Asylums Board (which is
constituted by representatives of every Board of
Guardians in the County of London) was empowered
by the Metropolitan Poor Act, 1867, to provide asylums
for the accommodation of such harmless pauper
lunatics as could, under the Lunacy Acts, be allowed
to remain in a workhouse. There are at present four
asylums where feeble-minded pauper persons such as
idiots, imbeciles, and harmless chronic lunatics are
detained. The cost of the maintainance of these
feeble-minded persons is borne by the Guardians of
the Parish to which the pauper belongs. Under the
existing administration of lunacy law, a large number
of patients who ought normally to be accommodated
in the institutions of the Metropolitan Asylums Board
are housed in the London County Mental Hospitals
at a cost of maintenance considerably higher than
would be the case if they were properly classified and
accommodated in the institutions of the Metropolitan
Asylums Board.

In accordance with strict legal nomenclature, the
institutions of the Metropolitan Asylums Board in
which lunatics are accommodated are not " asylums "
but are merely " workhouses " established under
the Poor Laws (a).

7. Poor Law Guardians. It is the duty of the
Poor Law Guardians to notify the local authority
(i.e., the County Council or County Borough Council)

(a) This fact accounts to a large extent for the confusion which exists in
the mind of the public between the Asylums and Mental Deficiency Committee
of the London County Council and the Metropolitan Asylums Board.

APPENDIX (1.) 171

of such persons as may be temporarily or perman-
ently chargeable to the rates who have been
certified in accordance with the Lunacy Acts to be
lunatics for whom accommodation in a public
asylum or mental hospital is necessary.

Over ninety eight per cent, of the patients in the
public asylums or mental hospitals are admitted
thereto upon the application of the Poor Law
Guardians.

In suitable cases the Guardians of the London
Poor Law Parishes and Unions make application
for the admission of harmless lunatics to the institu-
tions of the Metropolitan Asylums Board.

8. The Lord Chancellor,

(i) Where the Commissioners of the Board of
Control have visited a lunatic detained in a
private, family, or charitable establishment,
they may report to the Lord Chancellor who
may thereupon make an order for the discharge
or removal of the lunatic (a).

(ii) Where any person is detained as a lunatic
and the Board of Control represent to the Lord
Chancellor that it is desirable that the extent
of the lunatic's property should be ascertained,
the Lord Chancellor may, through the Masters
in Lunacy, direct that a statement of the par-
ticulars of the lunatic's property and of its appli-
cation shall be transmitted to him (b).

(iii) The Lord Chancellor may, upon the recom-
mendation of the Justices of a County or
Quarter Sessions, revoke or prohibit the re-
newal of a licence granted in respect of any
house for the reception of lunatics (c).

(a) Lunacy Act, 1890, Section 206.

(b) Ibid, Section 50.

172 APPENDIX (I.)

(iv) The Lord Chancellor may, by an order in
writing under his hand, require the person or
persons to whom the order is directed, to visit
and to examine a lunatic or alleged lunatic
(whether so found or not) and to inspect any
place in which he is detained, and to report
thereupon to him (a).

9. The Judge in Lunacy. The jurisdiction of the
Judge in Lunacy is exercised either by the Lord
Chancellor for the time being entrusted under the
royal sign manual with the care and commitment of the
custody of the persons and estates of lunatics, acting
alone or jointly with any one or more of the Lords
Justices of appeal similarly entrusted for the time
being, or by any one or more of such judges so en-
trusted (b).

In practice, the Lord Chancellor, acting under
statutory powers in that behalf, requests each of the
Lords Justices to act as an additional judge of the
Chancery Division of the High Court of Justice for the
purpose of making lunacy orders. For several years
it has been the custom for lunacy orders to be made
by one of the Lords Justices {i.e., the Judge in Lunacy)
sitting in Chambers, and for matters to be referred by
the lunacy officials to the Lords Justices in rotation.
The powers of the Judge in Lunacy relate chiefly
to the administration and management of the estates
of lunatics and to the appointment of persons as
committees of the persons of lunatics.

10. The Masters in Lunacy, The Masters in
Lunacy must be barristers of at least ten years'
standing. They are appointed by the Lord Chan-
cellor to exercise such of the powers of the '' Judge
in Lunacy " as are conferred upon them by the
Lunacy Acts and by the Rules in Lunacy.

(a) Lunacy Act, 1890, Section 205.

(b) Ibid, Section 108.

APPENDIX (I.) 173

They possess wide powers and duties relating to
the persons and property of lunatics. They are
ex-officio visitors, jointly with the Chancery visitors,
of lunatics so found by inquisition. Their chief
duty is to ascertain whether an alleged lunatic
is of unsound mind in the following cases : —

(i) Where the alleged lunatic does not demand a
jury:

(ii) Where the judge in lunacy considers it un-
necessary or inexpedient that the inquisition
should be before a jury.

II. Police Court or Stipendiary Magistrate, A
Police Court or Stipendiary Magistrate may exercise
the powers of the judicial authority in regard to the
hearing of petitions for the making of reception
orders for the detention of lunatics.

He may also make orders under Section 4 of the
Mental Deficiency Act, 191 3, for persons subject to
be dealt with under that Act to be detained in an
institution for defectives or to be placed under
guardianship.

12. Justices of the Peace, — Certain Justices of the
Peace are specially appointed annually under the
Lunacy Acts to act as certifying justices in respect
of alleged lunatics.

Under the Lunacy Acts their duties are to call to
their assistance one or two (as the legal technicalities
of the case may require) " duly qualified medical
practitioner or practitioners," and, if satisfied that
the alleged lunatic is insane, to certify that he is a
fit and proper person to be detained in a lunatic
asylum. Under the Mental Deficiency Act, 191 3, such
Justices have similar powers to those conferred upon
them by the Lunacy Acts. They may make orders
under Section 4 of the Mental Deficiency Act for
persons subject to be dealt with under that Act to

174 APPENDIX (I.)

be detained in an institution for defectives or to be
placed under guardianship.

13. Judge of County Court. A judge of a County
Court may exercise the powers of the judicial
authority in regard to the hearing of petitions for
the making of orders for the detention of lunatics
under the provisions of the Lunacy Acts.

Under Section 13 of the Lunacy Act, 1890, he has
power to deal in certain specified circumstances with
the property of a lunatic where the value is under
£200.

He may also make orders, under Section 4 of the
Mental Deficiency Act, 191 3, for persons subject to
be dealt with under that Act to be detained in an
institution for defectives or to be placed under
guardianship.

14. Chancery Visitors, The Chancery Visitors are
medical and legal visitors of lunatics so found by
inquisition. They are appointed by the Lord Chan-
cellor. The Chancery Visitors are ex-officio visitors
of lunatics so found by inquisition jointly with the
Masters in Lunacy. Their duties are to visit lunatics
so found by inquisition, at such times, and in such
rotation and manner, and to make such enquiries and
investigations as to their care and treatment and
mental and bodily health and the arrangements for
their maintenance and comfort, as the Rules in
Lunacy, or as any special order of the Judge in
Lunacy in any particular case, shall from time to
time direct. Every such lunatic must be visited
personally and seen by one of the Chancery Visitors
twice at least in every year.

The powers of visitation conferred upon the Chan-
cery Visitors in no way relieves the statutory com-
mittee of visitors of public asylums from their duty
of visiting in accordance with the requirements of
Section 188 of the Lunacy Act, 1890.

APPENDIX (I.) 175

15. The Board of Education, The Board of Edu-
cation is required to frame regulations for the guidance
of the Local Education Authorities in the performance
of their duties under the Mental Deficiency Act, 191 3,
the chief of which are as follows : —

(i) The ascertainment of what children within
their area are defective within the meaning of
the Act, and who are incapable, by reason of
mental defect, of profiting by instruction in
special schools ; and

(ii) The notification to the local authority under
the Act of all children who fall within certain
specified classes as defined by Section 2 (2) of
the Act. (See also " Local Education Au-
thority."

16. The Local Education Authority. The chief
duties of the Local Education Authority under the
Mental Deficiency Act, 191 3, are to make arrange-
ments, subject to the approval of the Board of
Education : —

(i) For ascertaining what children within their area
are defective children within the meaning of
the Act.

(ii) For ascertaining which of such children are
incapable by reason of mental defect of receiving
benefit or further benefit from instruction in
special schools or classes.

(iii) For notifying to the Mental Deficiency Com-
mittee what defective children are imbeciles or
feebleminded persons within the meaning of
Section i (b) and (c) of the Act.

APPENDIX (II.)

SUGGESTIONS FOR THE REFORM OF

LUNACY AND MENTAL DEFICIENCY

ADMINISTRATION.

Since the Lunacy Acts of 1890 and 1891 came into
operation there has been a degree of inefficiency and
a lack of uniformity in lunacy administration through-
out the country, due in great measure to the fact
that the duty of dealing with the insane poor has
been placed jointly upon the local Poor Law author-
ity and upon the County or County Borough Council
acting through a statutory committee which is, to a
large extent, independent of the body by whom it is
appointed.

In view of the terms of the recommendations of the
recently published reports of the Commissions on the
Administration of the Poor Law, and on the Care
and Control of the Feeble-minded, and in view also
of the establishment of a permanent Ministry of
Health, the following suggestions are made for the
improvement of lunacy administration : —

(i). The abolition of the law of settlement of
paupers so far as regards those certified to be of un-
sound mind.

Large sums of public money are expended annually
by Poor Law and county authorities in determining
the " chargeability " of pauper lunatics. It is sub-
mitted that the maintenance of all lunatics and
feebleminded persons should be made a national
charge.

176

APPENDIX (11.) 177

(2). The care and treatment of all persons of
unsound mind by the Central Authority referred to
below.

(3). The abolition of the Statutory Committee of
the County or County Borough Council set up by the
Lunacy Act, 1890, and the transference of all its
powers and duties to the Central Authority referred
to below.

In view of the nature of lunacy and of mental
deficiency, the need for treatment on broad lines,
and the wide powers for segregation of the mentally
unfit conferred on local authorities by the Mental
Deficiency Act, 191 3, it would appear to be in the
national interest that the duty of dealing directly
with the ascertained cases of mental defectives and
of dealing indirectly with the thousands of " border-
line " cases should be placed upon a Central Author-
ity directly responsible to Parliament. It is only
by a policy of co-ordination that economy and effi-
ciency in the public administration of lunacy and of
feeble-mindedness can be effected.

(4). For the foregoing reasons, it is suggested
that the Board of Control be made a sub-department
of the new Ministry of Health, and that the Board be
given statutory powers to deal with all cases of un-
soundness of mind (i.e., lunatics and mental de-
fectives) in such manner as may be prescribed by
Parliament : that is to say, the Board shall be enabled
to certify, to segregate, to treat in or outside of
institutions, all persons who by reason of defect of
mind are a danger or a potential danger to themselves
or to the community, and to discharge them in
proper circumstances. In other words, it is .proposed
to confer on the Central Authority wide powers for
dealing not only with certified lunatics, idiots, imbe-
ciles and feeble-minded persons, but also with all
persons who may be suffering from mental disorder in
an incipient stage.

INDEX

Aboulic Insanity, 5.
Accident

(See Inevitable Acci-
dent).
Adultery,

During Lunacy, 1 19 etsequi
Affective Insanity, 5, 6.
Agents,

Appointment by Lunatics,

54> 94-

Effect of Supervening In-
sanity, 95.
Ahrens, M.

Contract, 63.
Alabama, U.S.A.,

Divorce, 125.

Marriage, 112.
Alderson, Baron,

Contract, 80.

Negligence, 45.
Amentia, 3.
America, United States of.

Contracts, 68, 73.

Divorce, 125-6. (See also
Separate States).

Liability for Torts, 25, 26,

32,58.
Marriage, 1 1 2-4. (See also

Separate States).
Sound and Disposing Mind,

149-150.
Testamentary Capacity,

149-150.
Apprenticeship,

Supervening Insanity, 93.
Argentina,

Divorce, 123.
Marriage, 108.
Arizona, U.S.A.,
Divorce, 125.
Marriage, H2.

Arkansas, U.S.A.,

Divorce, 125.

Marriage, 112.
Armstrong- Jones, Sir Robt.,

131-

Arson, 7.

Assault, 20.

Definition, 20.

Liability, 22-24, 59.
Asylums Committee, or the
Asylums and Mental De-
ficiency Committee,

Duties, 169.
Austin,

Contract, 62.

Liability of Infants and
Lunatics, 56-7.
Austria,

Contract, 69,

Divorce, 124.

Marriage, 109.
Australia, Commonwealth of

Contract, 88.

Divorce, 123 (See Separ-
ate States).

Marriage, 108.

Bacon,

Malice, i8.

Misadventure, 21, 22.
Battery,

Definition, 20.

Liability, 22-3.
Bayley, J.,

Negligence, 46.
Belgium,

Divorce, 124.

Marriage, 109.

179

i8o

INDEX

Bentham,

Liability, 57.
Beven,

Liability, 26.

Negligence, 26, 28.
Blackburn, Lord,

Libel, 34.

Negligence, 51.

Nuisance, 40.

Unsatisfactory Defini-

tions, I.
Blackstone, Sir William,

Battery, 20.

Distinction between Idiot
and Lunatic, 13.

Liability, 57.

Idiots Presumed Incurable,

153.
Lunacy Presumed Curable,

153.
Board of Control (Late Com-
missioners in Lunacy),
Composition, Powers and

Duties, 165-6.
Suggested New Statutory
Powers, 177.
Board of Education,

Duties under Mental De-
ficiency Act, 191 3, 175.
Board of Visitors (Under
Lunacy Act, 1890),

Reports Confidential, 159.
BoWEN, L. J.,

State of Mind, 43.
Bracton,

Contract, 65.

Infants and Lunatics, 57.
Bramwell, Baron,
Contract, 80.
Inevitable Accident, 48.
Trespass, 27.
Brazil,

Divorce, 124.
Marriage, 109.
Breach of Promise of Mar-
riage, 115,

Brett, M.R.,

Negligence, 45.
British India. (See India).
Britton,

Contract, 70.
Bulgaria,

Divorce, 124.

Marriage, 109.
Butt, Sir Charles,

Divorce, 120, 121.
Byzantine Law,

Marriage, no.

Cairns, Lord,

Fraud, 42.
California, U.S.A.,

Divorce, 125.

Marriage, 112.
Camden, L.C.J.,

Trespass to Land, 32.
Canada, Dominion or.

Divorce, 123.

Marriage, 108.
Capacity,

Legal and Medical Tests
of, 160.

Negligence, 46-7.

Testamentary, 149 et sequi.
Castelnau,

Testamentary Capacity,

138.
Certificates of Insanity, 157.
Chancery Visitors,

Appointment, Powers and
Duties under Lunacy
Acts, 174.
Channel Islands,

Divorce, 122.

Marriage, 108.
Chile,

Contract, 69.

Marriage, 109.
China,

Divorce, 124.

Marriage, 109.

INDEX

i8i

Classification of Insanity,

2 et sequi.
Clirk and Lindsell,

Libel, 35.

Trespass, 26.
CocKBURN, Chief Justice,

Testamentary Capacity,
145-6.
Co-Habitation, 117.
Coke, Sir E.,

Contract, 71, 95.

Lucid Interval, 90.

Non Compos Mentis, II, 12.
Colorado, U.S.A.,

Divorce, 125.

Marriage, 112.
Columbia, District of, U.S.A.,

Divorce, 125.

Marriage, 112.
Commissioners in Lunacy,
(Now Board of Control),

Composition, Powers and
Duties, 165-6.
" Committee," 16.
Common Law, 15, 17, 18.

Contract, 71, 82, 83, 90.

Epilepsy, 36.

Idiots, 5.

Liability, 59, 82.

Lucid Intervals, 92.

Responsibility, 18.

Supply of Necessaries, 102,
103.

Torts, 26, 31.
Commonwealth of Australia.

(See Australia).
Confinement in Asylum,

Testamentary Capacity,

143.
Conjugal Rights,

Restitution of, 116.
Connecticut, U.S.A.,

Divorce, 125.

Marriage, 112, 114.
Conolly, J.,

Trespass, 26,

Contract, 61 et sequin

Capacity, 63-66, 72, 80-2.

Consent, 61.

Deceit, 86.

During Lucid Interval,
91-2.

Effect of Supervening In-
sanity, 93-95.

Foreign Law, 67.

Insurance, 96.

Marriage, 85-6, 105.

Modern Rule, 74, 83.

Necessaries, 76-8, 100-3.

Negligence, 45.
Contributory Negligence,

50-1, 55.
Conversion,

Liability, 54, 55, 59.

COTTENHAM, LoRD,

Evidence of Insanity, 157.
Cotton, L.J.,

Contract, 81.
County Council or County
Borough Council,

Duties under Lunacy Acts
and Mental Deficiency
Act, 1913, 168.
Cranworth, Lord,

Testamentary Capacity,
131.
Cuba,

Divorce, 124.
Marriage, 109.
Curatorship,

Roman Law, 14.

Damages,

Liability for, 21, 22, 29, 30.
Deaf Mutes,

Presumed Idiots, 134.
Deceit, 41-44.

Definition, 41.

Contract, 86.

l82

INDEX

Defamation,

Actionable, 34.

Intentional, 35-6.

Liability, 59.

Malice, 34.
Definitions,

Assault, 20.

Battery, 20.

Contract, 62.

Deceit, 41.

Defamation, 34.

Dementia, 6.

Feebleminded Person, 4.

Idiocy, 3, 4, II, 12.

Imbecility, 3, 4.

Insanity, 2 ^f j^^m/.

Libel, 34.

Lucid Interval, 14.

Lunacy, 15, 24.

Malice, 34 et sequi.

Malicious Prosecution, 38.

Moron, 3.

Necessaries, 103.

Negligence, 44.

Non Compos Mentis ^ 12.

Nuisance, 39.

Slander, 37.

Sound and Disposing Mind,

Trespass for Goods, 33.

Trespass to Land, 32.

Trespass to Person, 30.
Delaware, U.S.A.,

Divorce, 125.

Marriage, II 2.
Delirium, 13.
Delusions, 5,

General Paralysis, 8.

Responsibility, 163.

Testamentary Capacity,
133, I39> 14^8, 154.
Dementia, 3, 6.

Liability, 21.

Roman Law, 14.
Demolombe, M.,

Testamentary Capacity, 138

Denman, J.,

Liability for Trespass, 23.
Denmark,

Divorce, 124.

Marriage, 109.
Depravity, Moral,

Akin to Moral Insanity,
162-3.
Derangement of the Will, 5,
Divorce Laws, 118 et sequi,

British Dominions, 122-3,

England, 11% et sequi.

Foreign Countries, 124-5.

General Paralysis, 121.

Recommendations of the
Royal Commission, 121.

Supervening Insanity,
126-7.

Unreasonable Delay, 121.
Documentary Evidence, 135.
DoDsoN, Sir John,

Lucid Interval, 14.
Dominion of Canada,

Divorce, 123.

Marriage, 108.
Dominion of New Zealand,

(See New Zealand).
Drunkenness

and Insanity, 9, 10.

Earl, Mr. Justice,

Liability for Torts, 25.
Educational Authorities,
Local,

Duties under Mental De-
ficiency Act, 1913, 175.
Eldon, Lord,

Lucid Interval, 14.
Epilepsy

and Insanity, 36.
Epileptic Insanity,

Marriage, 8. (See also
Marriage).
Equity,

Contract, 90.

JLiUcid Interval, 92^

INDEX

183

Erskine,

Inevitable Accident, 28.

ESHER,

Contract, 75.

Liability, 19, 23.

Libel, 37.
Evans, Sir William,

Contract, 73.
Evidence, 152.

Alleged Lunatic's, 156.

Blood Relatives, 156.

Coroner's Verdict, 159.

Documentary, 135.

Findings of Jury on In-
quisition of Lunacy, 158.

General Reputation, 156.

Handwriting, 156.

Holograph Will, 135.

Medical Experts, 156.

Nature of the Act, 155.

Order of Master of Lunacy,
159.

Regarding Lucid Intervals,

152-3-
Report of Chairman of

Board of Visitors, Con-
fidential, 159.
State of Mind, 154-5.

Feebleminded Person, 3.
Definition, 4.
Marriage. (See Marriage)

FiTZHERBRET,

Contract, 71.

Definitions, 13.

Liability, 18.
Fleta, Writer of,

Contract, 65.
Florida, U.S.A.,

Divorce, 125.

Marriage, 112,
Fonblanque,

Contract, 73.
France,

Contract, 69*

Divorce, 124.

Marriage, no,

France, continued.

Testamentary Capacity,

137-8.
Fraud, 41.

Incapacity, 44.

Infant, 55.

Marriage, 107.

Suggestio Falsi, 42.

Suppressio Veri, 42.
Fry, L. J.,

Contract, 75.

Necessaries, 103.
Furor, 12.

General Mania, 6.
General Paralysis of the
Insane,

Characteristics, 9.

Similarity to Drunken-
ness, 9.

Divorce, 121.

Judicial Separation, 121.
Georgia, U.S.A.,

Divorce, 125.

Marriage, 112.
Germany,

Contract, 6"].

Divorce, 124.

Idiots, 6^.

Marriage, no.
Greece,

Divorce, 124.

Marriage, no.
Greek Church,

Marriage, no.
Grotius,

Contract, 61, 63.

Haldane, Lord,

Delusions and Testamen-
tary capacity, 148.
Hale, Sir Matthew,

Contract and Torts, 159.
Definitions and Classifi-
cations, 12, 14.
Liability, 18, 21.
Jiucid Interval, i^, 159.

1 84

INDEX

Hallucinations,

Testamentary capacity,
139, 146.
Handwriting,

Evidence, 156.
Hannen, Sir J.,

Testamentary Capacity,

131, 136.
Herschell, Lord,

Intention and Deceit, 43.

Malice, 35.
Hindu Law, (British India), ^

Divorce, 122.

Marriage, 108.

HoFFBAUER,

Testamentary Capacity,
138.
Holland, Sir T.,

on Contract, 63.
Holland,

Divorce, 124.

Marriage, no.
Holmes, Mr. Justice,

Inevitable Accident, 29, 30.

Liability, 59.

Negligence, 47.
Holograph Will, 135.
Holt, C.J.,

Battery, 20.

Contract, 73.
Home Secretary,

Duties under Lunacy Acts
and Mental Deficiency
Act, 1913, 168.
Homicide, 7.

Liability, 21-2.
Hungary,

Divorce, 124.

Marriage, no.
Hypnotism, 31.

Idaho, U.S.A.,

Divorce, 125.

Marriage, 112.
Ipeationaj. Insanity, 5.

Idiocy,

Definitions, 3, 4, 11, 12.

Lunacy, 13.

Presumed Incurable, 153.
Idiots,

and the Demented, 6.

Crime and Torts, 66.

Definitions, 34.

Presumed Incurable, 153.

Responsibility, 4-5.
Illinois, U.S.A.,

Divorce, 125.

Marriage, 113.
Imbecility

and the Weak Minded, 3.

Definitions, 3, 4.

Roman Law, 14.
Impulse, 5.
Impulsive Insanity,

Description, 7, 162.

Medical View, 161.

Responsibility, 163.
India, British,

Contract, 68, 89.

Divorce, 122.

Marriage, 108.
Indiana, U.S.A.,

Divorce, 125.

Marriage, 113.
Indian Contract Act, 89.
Indivisibility of the Mind,

Doctrine of, affecting
Testamentary Capacity,
142-6.
Inevitable Accident, 24.

Contributory Negligence, 51

Defence, 25.

Liability, 29, 30, 47-8.

New Zealand, 24, 27.

Trespass, 32-3.
Infant,

Analogy to Lunatic, 35,

56, 72.
Crime, 66.
Innes,

Malice, 35.

INDEX

1 8s

Inquisition of Lunacy,

Findings of Jury as Evi-
dence, 159.
Insanity. (See also Lunacy),

Affective, 5.

Burden of Proof, 164.

Classification, 3-8.

Defence, 21, 24, 26, 36.

Definition, 2 et sequi.

Drunkenness, 10.

Epileptic, 8.

Evidence, 156-9

General Paralysis, 9.

Impulsive, 7.

Intellectual, 5.

Maudsley, Dr, on, 2.

Moral, 6.

Partial, 7.

Presumed Curable, 153.

Supervening, 93.
Insurance, 96.
Intellectual Insanity, 5.
Intention,

Deceit, 41, 43, 44.

Defamation, 36-7.

Negligence, 46,

Trespass, 33.
Iowa, U.S.A.,

Divorce, 125.

Marriage, 112.
Ireland,

Divorce, 122.

Marriage, 107.
Irritability,

Epilepsy, 8.
Isle of Man, »

Divorce, 122.

Marriage, 108.
Italy,

Divorce, 124.

Marriage, no.

Japan,

Divorce, 124.
Marriage, iii.

Jessel, M.R.,

Testamentary Capacity,

154-
Judge in Lunacy,

Duties and Powers, 172.
Judge of the County Court,
Duties and Powers under
Lunacy Acts and Mental
Deficiency Act, 1913,
174.
Judicature Act, 92.
Judicial Committee of the
Privy Council,
Contract, 89.

Testamentary Capacity,
151.
Judicial Separation, on
Grounds of Insanity,
118, 120-1.
Justices of the Peace,

Duties under Lunacy Acts
and Mental Deficiency
Act, 1913, 173.
Justinian,

Contract, 65.

Kansas,

Divorce, 125.

Marriage, 113.
Kay,

Liability, 55.
Kekewick, J.,

Contract, 62.
Kelly, C.B.,

Liability, 21, 23.
Kent, (Chancellor in the
American Courts),

Testamentary Capacity,
151.
Kentucky, U.S.A.,

Divorce, 125.

Marriage, 113.
Kenyon, Lord,

Liability of Infants, 54.

Sound and Disposing Mind,
143.

i86

INDEX

Lacase, M.,

TestamentaryCapacity,! 37.
Langdale, Lord, M.R.,

Contract, 81.
Lee, R. W.,

Liability, 58.
Leeke,

Contract, 64.
Legal Tests,

Capacity, 4, 160.

Insanity, 4, 160.

Responsibility, 160.
Legrand Du Saulle,

TestamentaryCapacity,! 37.
Liability,

America, 25.

Breach of Promise of Mar-
riage, 1 1 5-6.

Common Law, 18, 31.

ContributoryNegligence,5l,

Deceit, 43-4.

Inevitable Accident, 21-3,

27, 29> 30, 48.

Infants, 54 et sgqui.

Intention, 30.

Necessaries, 100, 103.

New Zealand, 24-5.

Qualifications, 23.

Torts, 21-2, 29, '^^^gt sequi.

Trespass, 33-4.
Libel,

Definition, 34-5.

Incapacity, 37.
Lindley, Lord,

Contract, 81.

Corporations, 54.

LiNDSELL and ClERK,

Libel, 35.

Trespass, 26.
Littleton,

Contract, 71, 95.

Non Compos Mentis, II.
Local Educational Author-

ity,

Duties under Mental De-
ficiency Act, 1913, 175.

Lord Chancellor,

Powers and Duties under
Lunacy Acts, 171.
Loss OF Memory,

Senile Decay, 8.

Evidence of Insanity, 11,
151.
Lost Wills, 151.
lousiana, u.s.a.,

Divorce, 125.

Marriage, 113.
Lucid Intervals,

Contracts, 91-2.

Contracts and Torts, Pre-
sumption, 160.

Definition, 141.

During Confinement in
Asylum, 144, 154.

Marriage, 104.

Powers, 90.

Testamentary Capacity,
134, 143-4, 148.
Lunacy. (See also Insanity).

Agents During, 29.

Common Law, 17-8.

Crime and Torts, 66.

Definition, 15.

Distinction between Idiocy
and, 13.

Libel, 37.

Presumed Curable, 153.

Supervening, 93-4.
Lunacy Act, 1890,

Certificates of Insanity,

157.
Contract, 93.

Partnership, ico.

Reports of Board of Vis-
itors, Confidential, 159.

Supervening Lunacy, 93-4.
Lunatic,

Term first used in
Statutes, 12.
Luxemburg,

Divorce, 124.

Marriage, 11 1.

INDEX

187

Macnaghten, Lord,

Contract, 89.
Mahommedan Law,

Divorce, 122.

Marriage, 108.
Maine, U.S.A.,

Divorce, 125.

Marriage, 113.
Malice, 34-5, 38.
Malicious Prosecution, 25.

Definition, 38.
Mania, 6, 12.
Marriage,

As a contract, 85-6, 105-6.

Breach of Promise of, 115.

Consent, 104.

Epileptics, 112-115.

In British Dominions, 107-8

In England, 85-6, 104
et sequi.

In Foreign Countries, 108-
114.

Lucid Intervals, 104.

Mental Incapacity, 104-6.
Maryland, U.S.A.,

Divorce, 125.

Marriage, 112.
Massachusetts, U.S.A.,

Divorce, 125.

Marriage, 113.
Masters in Lunacy,

Appointment, Powers and
Duties, 172.
Maudsley, Dr Henry,

Epileptics, 8.

Definition of Insanity, 2.

Witness, 118.
Mazzoni,

TestamentaryCapacity,! 38.
Medical Experts,

Certificates of Insanity,! 57.

Evidence of, 156-7.
Medical Tests,

Capacity, 4, 160.

Insanity, 4, 160.

Responsibility, 160.

Melancholia, 6.
Mellish, L.J.,

Contract, 81.

Nuisance, 41.
Mercier, Dr Charles,

Epilepsy, 36.

Evidence of Insanity, 157.

Insanity and Drunkenness,
10.

Temporary Insanity, 155.
Metropolitan Asylums
Board,

Powers and Duties, 170.
Mexico,

Divorce, 124.

Marriage, iii.
Michigan, U.S.A.,

Divorce, 125.

Marriage, 11 3-1 14.
Minister of Health,

Duties under Lunacy Acts
and Mental Deficiency
Act, 1913, 166-7.
Minnesota, U.S.A.,

Divorce, 125.

Marriage, 11 3-1 14.
Misconduct, 1 18-9. (See also

Divorce).
Mississippi, U.S.A.,

Divorce, 125.

Marriage, 112.
Missouri, U.S.A.,

Divorce, 125.

Marriage, 112.
Monomania, 6, 138. (See also

Partial Insanity).

Montana, U.S.A.,

Divorce, 125.

Marriage, 112.
Moral Depravity,

Akin to Moral Insanity,
162-3.
Moral Imbeciles,

Definition, 4.

i88

INDEX

Moral Insanity,

Characteristics, 7.

Medical View, 161.

Moral Depravity, 162-3.
Moral Responsibility,

Delusions, 163.

Medical Tests, 160.
Moroseness

and Epilepsy, 8.
MoTT, Sir Frederick,

Test of Insanity, 157.
Murder, 7.

Nebraska, U.S.A.,

Divorce, 125.

Marriage, 113.
Necessaries, 76-8, 82, 100 3,

Definition, 103.
Negligence,

Capacity, 47, 49, 53.

Contributory, 50-1.

Definition, 44-5.

Liability, 46, 49, 56.
Nevada, U.S.A.,

Divorce, 125.

Marriage, 113.
Newfoundland,

Divorce, 123.

Marriage, 108.
New Hampshire, U.S.A.,

Divorce, 125.

Marriage, 112.
New Jersey, U.S.A.,

Divorce, 125.

Marriage, 113, 114.
New Mexico, U.S.A.,

Divorce, 125.

Marriage, 112.
New South Wales,

Divorce, 123.

Marriage, 108. (See Aus-
tralia).
New York, U.S.A.,

Divorce, 125.

Marriage, 114.

New Zealand,

Definition of Lunatic, 24.

Divorce, 123.

Inevitable Accident, 24,

Liability, 24-5.

Marriage, 108.

Negligence, 26.

Tort, 20.

Trespass, 26, 30.
NiCHOLL, Sir, J.,

Testamentary Capacity,
132.
NoN Compos Mentis, ii, 12.

Plea Estopped, 88.
North Carolina, U.S.A.,

Divorce, 125.

Marriage, 1 14.
North Dakota, U.S.A.,

Divorce, 125.

Marriage, H2.
Norway,

Divorce, 124.

Marriage, ill.
Nuisance, 39.

Obsessions, 5.
Ohio, U.S.A.,

Divorce, 125.

Marriage, 114.
Oklahoma, U.S.A.,

Divorce, 125.

Marriage, 114.
Oneness and Indivisibility
OF THE Mind,

Testamentary Capacity,
i^J et sequi.
Oregon, U.S.A.,

Divorce, 125.

Marriage, 114.

Paralysis. (See General

Paralysis).
Parke, Baron,

Contract, 80.

Libel, 34, 36.

INDEX

Partial Insanity,

Testamentary Capacity,
136, 138, 141, 147-8.
Partial Mania, 6.
Partnership,

Supervening Insanity, 97-
100.
Patterson, J.,

Contract, 77.
Paupers,

Suggested Abolition of
Law of Settlement, 176.
Pennsylvania, U.S.A.,
Divorce, 125.
Marriage, 112.
Penzance, Lord,

Malice and Defamation, 34.
Negligence, 51.
Peru,

Divorce, 124.
Marriage, in.
Phrenesis, 12.

Police Court or Stipendiary
Magistrate,

Duties under Mental De-
ficiency Act, 1913, 173.
Pollock, Baron,

Contract, 78-80.
Pollock, Sir Frederick,
Contract, 62, 79.
Inevitable Accident, 28, 30.
Liability, 46, 58-9.
Negligence, 26.
Torts, 24, 28, 31.
Trespass, 31,
Poor Law Guardians,

Duties under Lunacy Acts,
170-1.
Portugal,

Divorce, 124.
Marriage, iii.

POTHIER,

Contract, 62.
Prerogative, Court of,
Canterbury,

1S9

Pritchard, Dr J. C,

Testamentary Capacity,
140.
Property,

Allowances, 153.
Disposition of By

128 ^/ sequi.
Lucid Interval,

Will,

90.

Queensland,

Divorce, 123.
Marriage, 108.
tralia

(See Aus-

Testamentary
i34> H3-4-

Capacity,

Rabies, 12.

Redfield (and Shearman),

Liability, 58.
Reform of Lunacy and
Mental Deficiency Acts,

Suggestions for, 176 et
sequi.
Responsibility,

Delusions, 163.

Impulsive Insanity, 163.

Legal and Medical Test,
160.

Self-control, 160, 163.
Restitution of Conjugal

Rights, 116.
Rhode Island, U.S.A.,

Divorce, 125.

Marriage, 113.
Roman Dutch Law,

Contract, 69, 89.

Liability, 58.
Roman Law,

Capacity, 66,

Contracts, 65, 87.

Definition of Insanity, 14.

Disposition of Property,
129.

Liability, 57.

Minors, 87.

Necessaries, loi.

Testamentary Capacity,
137-

1 90

INDEX

ROUMANIA,

Divorce, 124.
Marriage, ill.
Russia,

Divorce, 124.
Marriage, iii.

St. Leonard's, Lord,

Contract, 72.
Sale of Goods Act, 1893, 89.

Necessaries, 102.
Salmond, Sir John,

Contract, 62.

Liability, 58-9.

Negligence, 26.
Saulle, Legrand Du,

Testamentary Capacity,

137.
Savage, Sir George, 9.

Savigny,

Contract, 63.
Scotland,

Breach of Promise of
Marriage, 116.

Contract, 6']^ 87.

Divorce, 122.

Marriage, 107.
Secretary of State for
Home Affairs,

Duties under Lunacy Acts
and Mental Deficiency
Act, 1913, 168.
Selborne, Lord,

Intention, 43.
Self-Control,

Responsibility, 160, 163.
Senile Decay, 148.
Senile Dementia, 8.
Separation, Judicial, 118,

I2Q-I.

Serbia,

Divorce, 124.

Marriage, 112.
Settlement of Paupers,

Suggested Abolition, 176.

Shearman (and Redfield),

Liability, 58.
Slander, 25.

Definition, 37.
Social Incapacity,

Test of Insanity, 4.

SOHM,

Incapacity, 14.
Sound Mind, 130 et sequi

(See also Testamentary
Capacity).

America, 149.
South Africa, Union of.

Divorce, 123.

Marriage, 108.
South Australia,

Divorce, 123.

Marriage, 108. (See Aus-
tralia).
South Carolina, U.S.A.,

Divorce, 125.

Marriage, 112.
South Dakota, U.S.A.,

Divorce, 125.

Marriage, 112.
Spain,

Divorce, 125.

Marriage, 112.
Staundford,

Definitions, 13.
Stephens, Mr. Justice,

Definition of Lunacy, 15.
Stipendiary or Police
Court Magistrate,

Duties under Mental De-
ficiency Act, 1913, 173.
Story, Mr. Justice,

Contract, 73.
Stout, C.J.,

Trespass, 26.
Stowell, Lord,

Marriage, 85, 105.
Subsequent Recovery,

TestamentaryCapacity,l35.
SuGGESTio Falsi,

Fraud, 42.

INDEX

191

Suggestions for Reform of
Lunacy and Mental Defi-
ciency Administration, 176
et sequi.

Suicide, 7, 15, 96-7.

Supervening Insanity,
Apprenticeship, 93,
Contract, 93.
Divorce, 118, 126-7.
Partnership, 97.

SuppRESSio Veri,
Fraud, 42.

Sweden,

Divorce, 125.
Marriage, 112.

Swinburne,

Definition of Lunatic, 13.
Testamentary Capacity,

134. H4-
Switzerland,

Divorce, 125.

Marriage, 112.

Tasmania,

Divorce, 123.

Marriage, 108. (See Aus-
tralia
Tennessee, U.S.A.,

Divorce, 125.

Marriage, 112.
Tenterden, Lord,

Contract for Necessaries,

77-
Testamentary Capacity,

America, 149, 150.

Burden of Proof, 153.

Continental Codes, 137-8.

Delusions, 139-148.

Evidence Regarding, 152-4

Indivisibility of the Mind,

142-6.
Lucid Intervals, 134.
Lunatics, 15, 128 et sequi.
Necessity for Proof, 136,

152.

Testamentary Capacity, con.

Partial Insanity, 136, ei
sequi.

Physical Infirmity, 148.

Sane Memory, 142.

Senile Decay, 148.

Sound Mind, 130, 142.

Subsequent Recovery, 135.
Tests of Insanity. (See

Legal and Medical
Tests).
Texas, U.S.A.,

Divorce, 125.

Marriage, 112.
Thurlow, Lord,

Lucid Interval, 14,
Torts,

Assault, 20, 22-4, 32.

Battery, 20, 22-3.

Capacity, 53 (?^ sequi.

Deceit, 41-44, 86.

Defamation, 34-6, 59.

Infants, 55.

Liability, 18-29, 5^> 59-

Libel, 34-5.

Malicious Prosecution, 25,

38.

Nuisance, 39.

Slander, 25, 27.

Trespass, 20-33, 55*

Valid Defence, 30.
Tredgold, Dr. A. F., 4.
Trespass, 20.

To Goods Definition, 33.

To Land „ 32.

To Person „ 20.

Inevitable Accident, 27.

Intention, 30-1.

Liability, Goods, 55.
Land, 32-3.
Person, 21,

23-7.
When not Actionable, 28.

Troplong, M.,

Testamentary Capacity,

137-

192

INDEX

Unavoidable Accident. (See
Inevitable Accident).
Union of South Africa,

Divorce, 125.

Marriage, 113.
Unreasonable Delay,

Divorce, 121.
Utah, U.S.A.,

Divorce, 125.

Marriage, 113.

Vermont, U.S.A.,

Divorce, 125.

Marriage, 114.
Victoria,

Divorce, 123.

Marriage, 108. (See Aus-
tralia).
Virginia, U.S.A., '

Divorce, 125.

Marriage, 114.
Visitation of God, 12.

VoET,

Testamentary Capacity,
149.
Vroom, Chancellor of
American Court,

Testamentary Capacity,
150.

Washington, U.S.A.,

Divorce, 125.

Marriage, 114.
Western Australia,

Divorce, 123.

Marriage, 108. (See Aus-
tralia).
West Virginia, U.S.A.,

Divorce, 125.

Marriage, 114.
Wilde, Sir J. P.,

Testamentary Capacity,
141.
Wills, Lost, 151.
Wills of Lunatics, 128 et
sequi. (See als9 Testa-
mentary Capacity).
Wisconsin, U.S.A.,

Divorce, 125.

Marriage, 114.
Wood, Renton,

Liability for Torts, 30.
Writings,

Evidence, 155.
Wynne, Sir William,

Lucid Intervals, 143-4.
Wyoming, U.S.A.,

Divorce, 125.

Marriage, 114.

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