were compelled to have recourse to Pothier on platione factum." He also cited, with approval, the Obligations, and to the early maxims of the civil two cases, of which the following are verbatim law.

.

Thomas Lee, on the 29th of August, 1843, made

Cases, 10th ed., at p. 347, themselves sanction the following statement of the law: "Where person, if a proposal to the National Loan Fund Life Assurance Company for the purchase of an annuity of £21 12s. 10d. for his life, payable yearly on the

present at the time, could lawfully command any act to be done, any other person, though either wholly without authority, or exceeding the limits twenty-ninth August, the first payment to be

of his authority, would be justified in doing that act, provided he did it in the name, or as one acting by the authority, of the person entitled (whether to his advantage or not), and obtained his subsequent ratification."

W

BETES NOIRES OF THE LAW.

THE MAN WHO IS MAD.

E ARE not proposing to consider the law of lunacy in general in our present chapter, but merely to consider the lunatic as a litigant. The lunatic as a litigant is one of the worst bêtes noires known to the law.

As the lunatic is the most horrible and formidable of all enemies in a physical struggle, because of the fearsomeness of his unnatural strength and the cruelty of his purpose, so in a struggle at law, if a lunatic obtains a hearing, as though he were sane, he is the most unpleasant black beast imaginable. "As though he were sane!" Why should he be heard, as though he were sane?

The answer is simple: Every person of the age of discretion is in presumption of law of sane memory, unless the contrary is proved, and this holds as well in civil cases as in criminal" (Elmer on Lunacy, p. 1; Hawkin's Pleas of the Crown, p. 33: Hassard v. Smith, 6 Ir. Rep. Eq. 429).

Hence it comes about that just from want of proof to the contrary the man who is mad is presumed to be sane, and, if sane, able, not only to walk about and do business like any other free man, but also to exercise the rights of citizenship by going to law. He may sue and be sued like any other individual, and courts of law are practically obliged to waste hours in listening to the gibbering rubbish of the man who is mad.

The Lunacy Act of 1890 (53 Vict. c. 5) contains everything that is necessary, if it is desired to rebut the presumption of sanity and to prove the man who is mad to be mad.

made on the twenty-ninth of August in the following year, and that he should pay the sum of £350 as the consideration of that annuity, and on the same day he made a proposal to the said society for the purchase of a deferred annuity of £30 for his life to commence on his attaining the age of sixty years, which would be on the 30th of June, 1864, the first payment to be on the 30th of June. 1865, reserving to him the option of receiving in lieu of such annuity the sum of £293 5s., payable immediately or the deferred sum of £377 5s. to be paid to his representatives after his death. The proposals were assented to and accepted by the society, and the terms of the agreements were embodied in two policies of insurance, bearing date, respectively, the 29th of August, 1843. The sums agreed upon of £350 and £5 6s. 2d. were then paid by the deceased, who subsequently died intestate in 1844. No memorial of these annuities had ever been enrolled in the High Court of Chancery. At the time of the making of these proposals and of the assenting thereto, and acceptance thereof, and of the granting of the said annuities, and of the payment of the said sums by Thomas Lee, the intestate, he was a lunatic and of unsound mind, so as to be incompetent to manage his affairs; but of this the society had not at that time any knowledge. The purchases of the annuities by Thomas Lee were transactions in the ordinary course of the affairs of human life, and the granting of the annuities to him in the manner and upon the terms before mentioned were fair transactions and transactions of good faith on the part of the society and in the ordinary course of their business; and at the time of making the proposals, and at the time they were assented to and accepted by the society, and of the granting of the annuities, and of the payment of the two sums by him, he appeared to the society to be of sound, though he was then, in fact, of such unsound mind, as aforesaid. The society first had notice of the unsoundness of mind of the grantee by letter, dated the 23d of September, 1843, from his

A creditor of the alleged lunatic may present a solicitors. No commission of lunacy had ever been petition in lunacy (Ex parte Ogle, 15 Ves. 112).

If the petition succeeds, the lunatic will, of course, no longer have the management of his own affairs. But, clearly, it is not because I have some small quarrel or dispute with one who turns out to be a lunatic that I can take upon myself the burden of proving that the man is mad. No one, perhaps, has ever taken any steps in the matter, and I, like everybody else, must, therefore, presume in the meanwhile that he is sane.

This is well illustrated by the important case of Moulton v. Camroux (4 Ex. 17). The facts in that case were agreed as follows (see 2 Ex. at p. 487):

issued against the grantee. The society had never made any payments in respect of the annuities in question, but had always been ready and willing to pay any sum which might have become due under them, and had never attempted to avoid the agreements. The plaintiffs' points were that the said Thomas Lee, being of unsound mind, could not make a valid contract of the nature set forth in the verdict; and, secondly, that the supposed contracts were void by statute for want of enrollment. And, therefore, that the plaintiffs were entitled to recover back the sums of money so paid. The plaintiffs failed on both points in the Court of

Exchequer, and the Exchequer chamber refused to proved to be insane, just as he must be presumed to interfere.

"The question," said Mr. Justice Pattison in the latter court, "is broadly raised whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair contract executed by the grantee, by payment of the consideration money, and intended bona fide to be executed by the grantor, by payment of the annuity," and this question he answered in the negative.

The man who is mad has full rights of citizenship till, by some process or other, he has been proved mad.

Hence arise several undesirable results.

66

Charles Dickens, describing the Court of Chancery in Bleak House, said: "I tried to listen, and looked about me; but there seemed to be no reality in the whole scene, except poor little Miss Flite, the mad woman, standing on a bench and nodding at it." This is not the place to discuss the cause of Miss Flite's madness and the whole series of questions suggested by her name; but we would remark this: Miss Flite, the mad woman," as the most real" part of the scene, still survives in the law courts on many a day. And why? Because the law presumes such an one to be sane. Judges are still obliged, by reason of this inevitable presumption, to give audience to the man who is mad. The man who is mad wastes the judge's time and his adversary's money, and wears away his life in a useless struggle for he knows not what.

And, alas! the man who is mad, but who is presumed not to be so, does much more than waste valuable time and money. The lunatic as a litigant is best known as litigating his defense in the criminal courts. We are not concerned to-day with the question as to what ought to constitute a good defense. The law, as is well known, asks whether a man understood the nature and quality of his act; and medical men ask whether, even if he did understand these, there were not yet some uncontrollable impulse which should form his excuse. We are interested for the moment rather in the prevention than in the punishment of the crime.

be innocent till he is proved to be guilty.

But, as the guilty must not be allowed to escape punishment, but his guilt must be brought home to him, so must the madness of the man who is mad be brought home to him. And this duty rests upon them who have the best means for knowing of the madness of the man who is mad.- Ernest A. Jelf, Barrister-at-Law, in Law Times.

DOUBLE LIABILITY FOR PERSONAL IN-
JURY WHERE DEATH RESULTS.

THE

HE opinions of the Supreme Court of Georgia in Southern Bell Telephone and Telegraph Co. v. Cassin (August, 1900, 36 S. E. 881), are worthy of careful reading, as they contain very elaborate discussions of the question of double liability on the part of a person guilty of a wrongful act causing personal injury to another, where the death of the injured person results. It was held by a majority of the court that an action for the homicide of a husband or father, alleged to have been occasioned by a physical injury, is not maintainable when it appears that he, while in life, voluntarily settled with the wrongdoer therefor, and discharged the latter from all liability for the damages resulting therefrom. The merits of the case before the Georgia court seemed particularly to call for the decision which was made. It appeared that one George Cassin had been injured by the plaintiff in He instituted suit, and, error in the year 1892. while the action was pending, the company paid him $2,500, taking a receipt stating that it was in full settlement of my action against said company now pending in the City Court of Atlanta, and also in full settlement of all and any claim for damages on my part arising out of the injury received by me on or about May 6, 1892.' More than five years after the injury Cassin died, and his widow thereupon brought suit against the company for his homicide, alleging that his death was caused by the injury negligently inflicted by the company. She, too, died, and the sut was then continued in the name of the children. The evidence, as to the cause of the death of Cassin, was conflicting, one physician testifying that it was due to apoplexy, superinduced by Cassin's habit of body, and great mental distress, caused by domestic afflictions. Another physician testified that it was caused by the blow from the fall of the telephone cable. The company offered in evidence the receipt given by Cassin in settlement of the damages."

What is everybody's business is but too apt to be nobody's business. In the town of Wisbech not long since a man murdered his mother. The son had been known as "Cracky Billy" for sometime before. On the evening of the night when the murder was done he seemed unusually strange, and inclined to violence; a neighbor, seeing this, sat up till a certain hour of night with mother and son, fearing some catastrophe; then he went to bed and did nothing else. Screams of murder were heard in the night; the neighbors persuaded themselves that it was cats, turned on their sides and It is very well established by the decision in the went to sleep again. Then the son strangled his present case, as well as by a large number of authorimother. ties cited, that a legislature has power to create a We believe the English lunacy law to be a good double liability, so that a right of action, as at law and a strong law. common law, may exist in favor of the person A man must be presumed to be sane till he is actually injured, and a cause of action may also

arise in favor of the widow, next of kin or other as a bar, upon considerations of a public policy persons designated. In some of the States the com- encouraging compromises, which would be rendered mon-law action is made survivable by statute, so difficult, if not impossible, under the view conthat, after the death of the victim of a personal tended for by defendants in error. The contention injury, concurrent actions may be maintained, of the defendants in error means that, if a settlerespectively, in favor of the personal representatives of the deceased and of the widow or next of kin. The legislative power to sanction such double liability is recognized in New York in Littlewood v. Mayor, etc., of New York (89 N. Y. 24). In the prevailing opinion in the Georgia case the question seems to be left doubtful whether a double remedy would not exist if the deceased had not actually released all claim during his lifetime. Two members of the court, in a dissenting opinion, express the views that the fact that a husband or father who, in consequence of the negligence of a telephone company, received personal injuries from which he died, had, while in life, received from the company full compensation for the tort to himself, does not defeat the statutory right of the widow or children to bring an action against the company for the homicide."

ment takes place, the defendant may be called upon to pay a second time in case of death. It means double damages. It means that the statute is to be treated as penal, and not compensatory. It means that we are to lay at the door of our statute the reproach which was so often and so justly uttered against the statutes of some of the other States, as to which it was said that it was actually cheaper to kill than to hurt.' With us, hereafter, it would mean the same thing, because for the death of the husband there would only be one recovery. For his injury and subsequent death there could be two recoveries. We have seen that statutes identical with ours, in substance, having the same object in view, and intended to give the same rights. have all, or very nearly all, been construed to mean that where the husband was injured, and subsequently settled for the injury, and thereafter died from the effect of the injury, there could be no recovery by his wife for his death. She stands in his shoes. She recovers, if he could have recovered. She fails, if, for any reason, he would have failed. If he consented to the injury, she cannot recover. If he ratifies the injury by accepting compensation, she cannot recover. If, by ordinary care, he could have avoided the injury.. she cannot recover. If he obtains judgment against the defendant, she cannot recover. What would have estopped him estops her. Not only would it be a hardship to require a defendant to pay double damages, but there are questions of public policy which cry out against such a construction a public policy so pronounced that it would require every reasonable doubt to be resolved in its favor. If the defendant is to pay the injured man full damages, and subsequently is to pay the full value of his life, it becomes manifest that settlements are impossible. It would operate to deprive the injured party of the power of settling his claim or realizing anything from it in his lifetime. It would naturally, if not inevitably, prevent settlements and procrastinate litigation until it could be determined whether death would ensue from the injury. There could be little inducement "The substantial grounds on which the courts to settle without suit, because whatever might be must hold that the husband's settlement bars the paid to the injured party would neither bar nor wife are based upon the fact that the wife's right diminish the claim of his widow or children, should in the life of the husband is subordinate to what death ensue. The statute should not be strained he himself has done with his life; that, as his negli- to bring about such a result, nor should it be gence is imputable to her, so his ratification and reached, unless required by the plain language of condonation of the wrong done him estop her; that the enactment' (Littlewood v. Mayor, etc., 89 N. Y. his acceptance of payment ratifies the act, and 24. 42 Am. Rep. 276, 277)."- New York Law admits that he has been made whole of his injury; that thereafter the defendant can say he has not harmed the husband, but that payment, like pardon, relates back to the original act, and makes it as though it had not been. The settlement operates

The judicial discussion of the question makes it evident that the real question to be decided in cases of this kind is the actual intention of the legislature. In Littlewood v. Mayor, etc. (supra) Judge Rapallo very ably, and, as we think, conclusively, argued that it was not the intention of the legislature of New York in passing chapter 450, Laws of 1847, to impose a double liability, but simply to give a right of action where a party having a good cause of action for a personal injury was prevented, by death resulting from such injury, from enforcing his right or omitted in his lifetime so to do. When we consider that if the principle of double liability be recognized, actions may be brought, as in the Georgia case above referred to, a number of years after the death of the injured person, and the great opportunities for fraud and vexatious litigation thereby opened, we think the strong tendency of the courts to presume against double liability is clearly in the interest of justice. The following language, from the prevailing opinion of the Supreme Court of Georgia, in Southern Bell Telephone and Telegraph Co. v. Cassin (supra), may be cited as offering strong reasons for entertaining such presumption:

Journal.

In the entire United States, 722 out of every million of inhabitants are convicts.