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Mercantile Law Amendment.-- Review : Williams on Unsoundness of Mind. 463 preserve recourse and this remedy against may be mania without delusion;' while Lord drawers and indorsers, the instrument of pro- Denman, in his charge to the jury in the case, test must bear that the bill, or note, was pre- . Regina v. Smith,' had observed in 1849, “To sented and dishonoured at the place of pay- say a man was irresponsible, without positive ment on the day it fell due. If, therefore, the proof of any act to show that he was labouring: bill, or note, be not marked by the notary (or under some delusion, seemed to him to be a noted, as it is commonly called,) there could be presumption of knowledge which none but the no instrument, and consequently summary di- great Creator Himself could possess.' Again, ligence could not be used against the parties Lord Campbell, in a debate in the House of liable in recourse. If, in all cases, the bill. Lords, after alluding to his very long and holder was the only party concerned, he might very large attention to the subject," said, He be allowed to exercise his discretion ; but had looked into all the cases that had occurred where there are more than one indorser, who, since Arnold's trial, 1723, and to the directions of course, must be ignorant of the dishonour of the Judges in the case of Lord Ferrers, Beluntil the second or third day after the bill is lingham, Öxford, Francis, and M‘Naughten, due, their right of relief against prior indorsers and he must be allowed to say that there was would be most materially impaired and pre- a wide difference, both in meaning and in judiced by losing this valuable remedy. It is words, in their descriptions of the law.' We thought a bill-holder is bound so to act, in the may add to this, the aggregate opinion of the negotiation of the document, as to preserve all fifteen Judges, who decided in 1843, “That the rights and remedies in favour of indorsers, before a plea of insanity should be allowed, which the law affords for enforcing payment of undoubted evidence ought to be adduced that the debt; and one of the most important privi- the accused was of diseased mind, and, at the leges of summary diligence, besides despatch, time he committed the act, he was not conis that the execution cannot be stayed without scious of right and wrong. Hence, though a caution or consignation. It is trusted, there man be of a diseased mind, if he is conscious fore, that the clause will be withdrawn from the of right and wrong, it follows that he must be Bill.

considered as a responsible party.” “ If it is allowed to remain, and become law, it will be kept in view, that it does not apply to cal experience makes one part of this pro

But the Author contends, that all medi. foreign bills of exchange.”

position oppose the other, for in the knowThe remaining clauses, subject to some ledge of right and wrong is merged the verbal amendments are approved.

question of diseased mind; and he adds,

that while perfectly sound minds may ignore NOTICES OF NEW BOOKS. the criminality of a particular act, the dis

tinct knowledge of its criminal nature can On Unsoundness of Mind, in its Medical co-exist with a mind thoroughly deranged. and Legal Considerations. By J. W.

Whilst the Author freely criticises the HUME WILLIAMS, M. D. London :

views of some of our most eminent Judges Churchill, 1856. Pp. 238.

in the discussion of the validity of pleas of

insanity, we do not find that he supplies a The five Essays composing this volume better guide than they have afforded to aid previously appeared in the Dublin Quar- a jury in coming to å just conclusion. It terly Journal of Medical Science, and have is unquestionably true, that juries are suffibeen carefully revised by Dr. Williams. ciently inclined to find a prisoner insane They relate to a difficult and important who is accused of the crime of murder, and branch of Criminal Law, upon which there will not find a verdict which will subject has been much conflict of opinion both him to the punishment of death, unless amongst medical men and lawyers. Dr. they are fully satisfied of his being in a Williams maintains that the diversity of state of mind sufficiently sound to justify opinion in medical writings and the state the infliction of the last penalty of the law. ment of legal doctrines is owing to the We say sufficiently sound,” because if identification of physic with law. He says, perfect soundness of mind were required at

“Insanity is, or is not, a disease! If it is the time of the commission of the offence, not a disease, the law is strangely defective; there would probably be few criminals who since, as Dr. Forbes Winslow in his admirable might not escape. Indeed, advocates, in writings on this particular subject has so clearly their zeal, have sometimes contended that and ably shown, no two Chancellors have the perpetration of an enormous crime was agreed respecting its constitution; and, not a proof of what they called insanity. Nay, only this, but they have in their separate some philosophers (so called) have argued opinions, with considerable acrimony, criticised each other's judgments. Thus, in the trial that a crime is only a mistake of the judgof the case, . Bainbrigge v. Bainbrigge, Lord “ Hansard's Parliamentary Debates, vol. Campbell, in 1850, distinctly states, There xvii., p. 92.”

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464

Review : Williams on Unsoundness of Mind. ment, and who would put a man to death the previous history of the particular case, and for a mistake ? After all that medical our knowledge of the peculiar characteristics of writers may urge on the vagueness of the the affection under consideration. Let us conlegal doctrines propounded from the Bench, trast those periods of physical and psychical the jury rarely err in coming to a right either sphere be so far accomplished, that, for

repose. May not the exercises appertaining to conclusion on the facts proved before them. the ordinary purposes of life, they prove suffi

Dr. Williams classes mental conditions cient? Pending this seemingly healthy state, which originate crime, under the following some cause apparently trivial, or, it may be, heads :

considerable, occurs; a convulsion is unex1. Insane states, manifested chiefly by pectedly produced, or a paroxysm of insanity delusion or what has been termed “ mono

follows. In both cases the predisposition remania,” in which the intellectual or reason- quires but a slight occasion for its developing powers seem to be those more particu- ment, and in both cases, had the immediate

exciting cause been prevented, the same semlarly involved.

blance of health might have been maintained. 2. Insane states in which the exaggera- This practical fact must ever be remembered, tion or perversion of the moral intelligence as showing the great difficulty enveloping our or affective faculty is that most evident, estimate of many cases in which, where inconstituting the “moral mania” of writers, sanity had been known to exist, but where its when the intellectual powers are apparently evidences have subsided, acts of a criminal nrunaffected.

ture ensue. It is true, that in many instances 3. Insane states in which neither the the mental disturbance is of such a decidedly moral nor the intellectual faculty is of ne- reason which intervene between each paroxysm

recurrent character, that those glimpses of cessity inadequate to appreciate the relations are justly regarded as but so many calms, of a particular act, whose commission is whose occurrence is an occasion for thankfulalone explicable on the admission of an ness, even though their duration be matters of irresistible impulse — described as “im- uncertainty. That during such intervals, acts, pulsive insanity.”

in every way indicative of perfect sanity, are The Author then proceeds to the con- accomplished, is not denied. It is contended, sideration of these several classes of mental under circumstances of this nature, to infer

however, that we are not invariably at liberty, disease : monomania ; moral insanity; and that the mind is really sound because it is impulsive insanity. Then in the last Essay seemingly so; or to, in all cases, hold the indihe treats, amongst various other topics, of vidual responsible for actions of a criminal nas practical responsibility and of lucid inter- ture which may, in such intervals, be perfected, vals. From the statements and observa- since the act to be considered may, in itself, have tions of the Author on the latter subject, bid condition. It is this latter fact that must

been the occasion of developing the latent morwe make the following extracts :

guide us in our estimation of such cases, while, " Examination of a patient between the for their more particular appreciation, those geperiods of attack may afford little evidence of neral principles we have already discussed come the mischief at work: a cause capable of act- into operation. We transcribe the observaing on the predisposition occurs, the impetus is tions of Dr. Combe on this point, as expressive aroused, and the acme of the disease results; of the condition of individuals who, having rea period of repose follows, in which it would covered from an attack of insanity, are again be folly to presume, because no active opera- brought under examination. Hoivever calm tions were manifest, that their source was not and rational the patient may appear to be the less truly present. Curative measures may during the lucid intervals, as they are called, triumph over such conditions, and health and while enjoying the quietude of domestic follow on the exertions of the physician. The society, or the limited range of a well regulated progress of analogous disease, manifest through asylum, it must not be supposed that he is in mental affections, is even more subtle. In. as perfect possession of his senses as if he had sanity becomes developed, its symptoms sub- never been ill. In ordinary circumstances, and side, apparent rationality is present; a recur- under ordinary excitement, his perceptions may rence of the disturbance follows, again to be be accurate,and his judgment perfectly sound, succeeded by a calm ; curative measures ac- but a degree of irritability of brain remains becomplish their end, and the calm becomes per- hind, which renders him unable to withstand petuated. A question thence arises-Are we, any unusual emotion, any sudden provocation, pending the abeyance of morbid manifestations, or any unexpected and pressing emergency. warranted in affirming the presence of disease? Were this not the case, it is manifest that he To this we must, in many cases, afford a posi- would not be more liable to a fresh paroxysm tive reply, since this very abeyance may be the than if he had never been attacked. “And the chief characteristics of the disease whos pre- opposite is notoriously the fact, for relapses are sence we infer. How, then, in the absence of always to be dreaded, not only after a lucid inunusual manifestations, are we to find grounds terval, but even after perfect recovery. And it for such an inference? We respond-From is but just as well as proper, to keep this in

Review.-Rules and Regulations of the Judicial Committee.

465 mind, as it has too often happened that the humbly setting forth that the Lords of the Julunatic has been visited with the heaviest re- dicial Committee have taken into consideration sponsibility for acts committed during such the practice of the Committee with a view to intervals, which, previous to the first attack of greater economy, despatch, and efficiency in the disease, he would have shrunk from with the appellate jurisdiction of her Majesty in horror.'»

Council, and that their lordships have agreed The following is a remarkable instance of pedient that certain changes should be made in

humbly to report to her Majesty that it is exfeigned insanity by a criminal, which re- the existing practice in appeals, and recomminds us of the recent attempt of a mur- mending that certain rules and regulations derer to escape the punishment due to his therein set forth should thenceforth be observoffence :

ed, obeyed, and carried into execution, provided “A case is recorded of a young shepherd,

her Majesty is pleased to approve the same :

Her Majesty, having taken the said report named Specht, of previous good health, lively into consideration, was pleased, by and with manners, and great intelligence, residing at the advice of her Privy Council, to approve Hegelensheim, on the Upper Danube, who, thereof, and of the rules and regulations set having violated and shot a young girl, avowed forth therein, in the words following ; videlicet, his crime, and declared that the devil had in

1. That any former usage or practice of her cited him to do it. Next day, when brought Majesty's Privy Council notwithstanding, an before the magistrate, he seemed to have lost appellant who shall succeed in obtaining a reevery physical and mental faculty; he could versal or material alteration of any judgment, not stand without a great effort, and only an-decree, or order appealed from, shall be enswered in incoherent and isolated words.

He titled to recover the costs of the appeal from pretended to be deaf, and to have lost his me- the respondent, except in cases in which the mory, could recognise no one, and afforded no Lords of the Judicial Committee may think fit satisfactory answer to any interrogatory. MM. otherwise to direct. Windler and Zinc, the experts employed to ex- 2. That the registrar or other proper officer amine into the state of his mind, were both of having the custody of records in any Court of opinion that the condition was simulated, inas, special jurisdiction from which an appeal is much as the degree of imbecility he pretended brought to her Majesty in Council be directed to exhibit could only be congenital, and there to send by post, with all possible dispatch, one was no example of a person of such excellent certified copy of the transcript record in each parts as he possessed, prior to the occurrence, cause to the registrar of her Majesty's Privy becoming suddenly imbecile : for imbecility Council, Whitehall; and that all such transthat is not congenital only comes on and in- cripts be registered in the Privy Council Office, creases gradually. The prisoner was watched with the date of their arrival, the names of the for 14 months, and various plans tried. He parties, and the date of the sentence appealed still continued the same. The medical men from ; and that such transcript be accompanied maintained their opinion. He was then sen- by a correct and complete index of all the tenced to three years' imprisonment, and, on papers, documents, and exhibits in the cause; returning to his cell, he threw off the impo- and that the registrar of the Court appealed sition, and leaped for joy. He had been ad, from, or other proper officer of such Court, be vised to feign insanity by a fellow prisoner.' directed to omit from such transcript all merely This remarkable instance confirms the opinion formal documents, provided such omission be of Ray, who differs from the authorities last stated and certified in the said index of papers; quoted, in the assertion that nothing requires and that especial care be taken not to allow any a severer exercise of a physician's knowledge document to be set forth more than once in and tact, than a case of simulated insanity,' such transcript; and that no other certified For the detection of such cases, the same prin copies of the record be transmitted to agents ciple of successive observation, which seems in England by or on behalf of the parties in to have so truly guided the opinions of MM. the suit; and that the fees and expenses incurWindler and Zinc, promises the surest safe- red and paid for the preparation of such tranguard against error.'

script be stated and certified upon it by the

registrar or other officer preparing the same. RULES AND REGULATIONS 3. That when the record of proceedings or

evidence in the cause appealed has been printed

or partly printed abroad, the registrar or other JUDICIAL COMMITTEE. proper officer of the Court from which the ap

peal is brought shall be bound to send home ORDER IN COUNCIL.

the same in a printed form, either wholly or so WHEREAS there was on the 13th June, 1853, far as the same may have been printed, and read at the Board a Report from the Right Ho- that he do certify the same to be correct, on nourable the Lords of the Judicial Committee of two copies, by signing his name on every the Privy Council, dated the 30th May last past, printed sheet, and by affixing the seal, if any,

of the Court appealed from to these copies, * Dr. Combe's Observations on Mental De with the sanction of the Court. rangement, p. 241.

And that in all cases in which the parties in

OF THE

466 Rules and Regulations of the Judicial Committee.-Law of Attorneys. appeals shall think fit to have the proceedings i prevent the Lords of the Judicial Committee printed abroad they shall be at liberty to do from ordering the full discussion of the whole 80, provided they cause 50 copies of the same case, if they shall so think fit; and that in to be printed in folio, and transmitted, at their order to promote such arrangement and simexpense, to the registrar of the Privy Council

, plification of the matter in dispute, the registrar two of which printed copies shall be certified of the Privy Council may call the agents of as above by the officers of the Court appealed the parties before him, and having heard them, from; and in this case no further expense for and examined the transcript, may report to the copying or printing the record will be incurred committee as to the nature of the proceedings. or allowed in England.

And her Majesty is further pleased to order, 4. That on the arrival of a written transcript and it is hereby ordered, that the foregoing of appeal at the Privy Council Office, White- rules and regulations be punctually observed, hall, the appellant or the agent of the appellant obeyed, and carried into execution in all approsecuting the same shall be at liberty to call peals or petitions and complaints in the nature on the registrar of the Privy Council to cause of appeals brought to her Majesty, or to her it, or such part thereof as may be necessary heirs and successors, in Council, from ber Mafor the hearing of the case, and likewise all jesty's colonies and plantations abroad, and from such parts thereof as the respondent or his the Channel Islands or the Isle of Man, and agent may require, to be printed by her Ma- from the territories of the East India Company jesty's printer, or by any other printer on the whether the same be from Courts of Justice or same terms, the appellant or his agent engag- from special jurisdictions, other than appeals ing to pay the cost of preparing a copy for the froin her Majesty's Courts of Vice-Admiralty, printer at a rate not exceeding 1s. per brief to which the said rules are not to be applied. sheet, and likewise the cost of printing such Whereof the Judges and officers of her Marecord or appendix, and that 100 copies of the jesty's Courts of Justice abroad, and the same be struck off, whereof 30 copies are to be Judges and officers of the Superior Courts of delivered to the agents on each side, and 40 the East India Company, and all other perkept for the use of the Judicial Committee; sons whom it may concern, are to take potice and that no other fees for solicitors' copies of and govern themselves accordingly. the transcript, or for drawing the joint appen

W. L. BATHURST. dix, be henceforth allowed, the solicitors on both sides being allowed to have access to the At the Court at Buckingham Palace, the 31st original papers at the Council Office, and to

day of March, 1855. extract or cause to be extracted and copied such parts thereof as are necessary for the

PRESENT: paration of the petition of appeal, at the sta- THE QUEEN'S MOST EXCELLENT MAJESTY tioner's charge, not exceeding is. per brief

IN COUNCIL. sheet.

Whereas doubts have arisen with reference 5. That a certain time be fixed within which to the power of the Judicial Committee of the it shall be the duty of the appellant or his Privy Council to suspend or relax, under ceragent to make such application for the printing tain special circumstances, the regulations in of the transcript, and that such time be within appeal causes established by her Majesty's the space of six calendar months from the ar- Order

in Council of the 13th June, 1853 : her rival of the transcript and the registration Majesty, by and with the advice of her Privy thereof in all matters brought by appeal from Council

, is pleased to order, and it is hereby her Majesty's colonies and plantations east of ordered, that in appeal cases in which a petition the Cape of Good Hope or from the territories of appeal to her Majesty shall have been lodged, of the East India Company, and within the and referred by her Majesty to the Judicial şpace of three months in all matters brought Committee, the said regulations shall be subby appeal from any other part of her Majesty's ject to any order or direction which, in the dominions abroad'; and that in default of the opinion of the Lords of the Judicial Committee, appellant or his agent taking effectual steps the justice of any particular case may seem to for the prosecution of the appeal within such require. time or times respectively, the appeal shall

C. C. GREVILLE. stand dismissed without further order, and that a report of the same be made to the judical committee by the registrar of the Privy

LAW OF ATTORNEYS AND Council at their lordships' next sitting.

SOLICITORS. 6. That whenever it shall be found that the decision of a matter on appeal is likely to turn PRODUCTION OF CASES AND OPINIONS OF exclusively on a question of law the agents of

COUNSEL BY TRUSTEES IN SUIT BY CESthe parties with the sanction of the registrar of TUIS QUE TRUSTENT. the Privy Council, may submit such question of law to the Lords of the Judicial Committee in terested in a testator's estate against the

Tais bill was filed by certain parties inthe form of a special case, and print such parts administratrix of the surviving trustee and only of the transcript as may be necessary for the discussion of the same; provided that no others, praying an account, and for a decree thing herein contained shall in any way bar or against the assets of the trustees for what

pre

Law of Attorneys and Solicitors.-Law of Costs.

467 should be found due from them in respect that this rule ought to be discharged. The thereof or of any breach of trust, or of any case is distinguishable from that of a deed or loss by reason of their delay in selling the of any

other document, which has been lost real estate as directed by the will.

for a considerable period of time, and where The administratrix stated in her answer I think, that, if the night before a cause is com

all that is known of it is merely that it is lost. that she remembered her husband, who ing on to be tried, the clerk of the plaintiff's died in 1846, say he was a trustee of the attorney, who has the care of the papers, burns will in question; but that otherwise she a bill of exchange, which is required as eviknew nothing whatever of the matters men- dence in the cause, by lighting his pịpe with tioned in the bill until August, 1849, when the bill, such act of the attorney's clerk, ought certain applications were made to her, and not to create any additional expense to the deshe claimed as privileged from production him, may have righteously defended the action, to the plaintiffs, any of the cases for the in relying upon a point which made it a fit and opinion of counsel, or copies thereof, on the proper cause to be tried. And, I think, that ground that the same were stated and taken, in such a case it would not be just to make the either by the trustees or by her, in refer- defendant pay the expenses incurred by bringence to the matters in question in the suit, ing a witness down to the assizes, to tell the and in anticipation of the pending proceed-story of his having destroyed the bill of exings, and with a view to their defence from change, by his own negligent act. Here the such proceedings. It appeared, however,

bill was destroyed after the cause was in prothat one was dated in 1841, and that all gress, and when that instrument had become a

most important document, and consequently the others, with one exception, were before great care should have been taken of it; and, August, 1849.

I think, that the plaintiff cannot cast upon the On a motion for their production, the defendant the expenses arising out of the neMaster of the Rolls said, that all the cases gligence either of the plaintiff himself, or of his and opinions must be produced, except the attorney, or of the attorney's clerk, for the one taken in or since August, 1849. De- conduct of both of whom the plaintiff himself vaynes v. Robinson, 20 Beav. 12.

is responsible. Upon these grounds I am of opinion, that, in such a case as this, the Mas

ter is bound to go into the question, whether LAW OF COSTS.

the expenses were properly incurred in the course of the cause, and under such circum

stances as to make the defendant responsible

OF BILL DE- for them. Mr. Phipson says, that notwithSTROYED BY CLERK TO PLAINTIFF'S AT- standing the disallowance of these costs as be

tween party and party, the attorney may bring In an action by the drawer against the ac- an action against his client for the recovery of ceptor of a bill of exchange, the defendant and I do not see why we should extract these

them. But he may not succeed in the action ; pleaded non-acceptance, and on the trial the costs from the defendant's pockets, on the plaintiff being unable to produce the bill, called ground that the plaintiff's attorney may bring as witnesses two clerks to his attorney, who an action for them against his own client. If proved that during the progress of the action client, I should say that the expenses ought to

the question were now between attorney and his attorney had sent the bill to the London fall upon the attorney himself, and that he agents for the purpose of production, under a could not recover for an expense occasioned notice to admit ; that it was afterwards in- by the avowed negligence of his clerk, for whose closed in an envelope and laid on a desk in the I think, that these expenses could not be re

acts he is himself responsible. On this ground, plaintiff's attorney's office by one of his clerks, covered as expenses in the cause. If the plain, and that the other supposing the envelope tiff had lost the cause instead of gaining it, and empty, took it up and threw it into the fire. the plaintiff and his attorney had to settle the Secondary evidence of the bill was received, have been called upon to pay these expenses,

bill between them, and if the plaintiff could not and the plaintiff obtained a verdict.

à fortiori, the defendant cannot be called upon On the taxation, the Master disallowed the to pay them to the plaintiff. I therefore think, costs of these witnesses, and this rule was ob- that the Master was bound to enter into the tained to review his taxation.

inquiry, and acted rightly in disallowing these

costs." The learned Barons differed in opinion, L. C. B. Pollock and Martin, B., holding that Alderson, B., said, “I differ in opinion the Master was right, Alderson and Platt, BB., from my Lord Chief Baron. I think that this contrà. The judgments are as follow :

rule ought to be made absolute, on the prin

ciple that the Master had not the power under Pollock, L. C. B., said, "I am of opinion the discretion entrusted to him, to try the ques

OF SECONDARY

EVIDENCE

TORNEY.

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