en was held strong confirmation of the other evidence of insanity (e). A commission of idiocy, and inquisition returned thereon, finding the party not to be of unsound mind, was held not conclusive evidence of his sanity. But the commission, inquisition, and return, together with a fine, præcipe, and caption of a fine and warrant of attorney, were held to be conclusive evidence of the capacity of a party to make a warrant of attorney and suffer a recovery, in a case where the issue upon his sanity was joined after his death, and the warrant of attorney and caption thereof appeared to have been made and acknowledged before the Chief Justice at the same time that the caption of the fine was acknowledged before him; and the tenant to the præcipe in the recovery was made by fine (ƒ). 16. There was a difference of opinion as to the admissibility of a coroner's inquest finding a party a lunatic, for the purpose of defeating his will. Upon a trial at bar of an issue from the Court of Chancery, devisavit vel non, to overthrow the will, the defendant insisted that the testator was non compos at the time of making it, which was the 29th, having shot himself on the 31st. Among other circumstances, the coroner's inquest, which found him lunatic, was offered to be read. The Court was divided upon the point; two of the Judges deeming it to be inadmissible, because the parties were not the same, the one being a civil, and the other a criminal proceeding (g). Lord Coke is of opinion that an inquisition of felo de se taken before the coroner super visum corporis is not traversable, and is conclusive upon the executors or administrators of the deceased (h); but the reasons suggested by Staunford (i), whom he quotes, are very unsatisfactory. Lord Hale is of a different opinion, conceiving it to be a great hardship that an inquisition, which is no more than an in (e) Browning v. Reane, 2 Phill. 69. (f) Hume v. Burton, 1 Ridg. P. C. 204. (g) Jones v. White, 1 Str. 68. See 1 Stark. on Ev. 257; 1 Phill. on (h) 3 Inst. 55. (i) Staunf. P. C. 183, F quest of office, taken behind the backs of the executors or administrators of the deceased, should be conclusive (k). It seems, indeed, to be now fully established that such an inquisition may be removed into the King's Bench by certiorari, and traversed by the executors or administrators of the deceased (1). But it is agreed, that no inquisition can be traversed, to make a man felo de se, who is found not to be so; and, therefore, if an inquisition find that the party was non compos mentis at the time he did the act, neither the King nor his grantee can traverse it (m); although, if the verdict be obtained by indirect practices of the coroner, a melius inquirendum may be obtained before special commissioners, who can proceed upon the testimony of witnesses only, and not super visum corporis (n). And though the coroner return to the King's Bench an inquisition finding a felo de se non compos, yet he is not obliged to return the depositions, unless there be something depending before the Court to make it necessary (o). 17. The capacity of a party to do one act, is not conclusive as to his capacity to do another, if his capacity as to the other be triable by a different jurisdiction, whether the two acts make one and the same assurance, or are done at one and the same time or not. No two acts can be supposed to be more intimately connected with each other, both in unity of time and of assurance, than a will of both real and personal estates, written upon one and the same piece of paper or parchment, and subscribed by one and the same signature; and yet it is clear law, that though the probate of such a will is conclusive evidence of the sanity of the testator to make such will of personalty (p), yet it is by no means conclusive evidence of his capacity to dispose of his real estate (g). (k) 1 Hale's P. C. 416, 417. (m) Anon. 1 Vent. 239, 278. 2 Hawk. P. C. 54, fol. ed.; Rex v. Bunney, 1 Salk. 190; 1Wms. Saund. 303, n. (1). See Jervis on the Office and Duties of Coroners, 283, 284. (0) Case of the Coroner of Westminster, 2 Str. 1073. (p) Partridge's case, 2 Salk. 552. (q) 1 Ridg. Parl. Cas. 277. In a case of ejectment against a devisee, where the question turned upon the sanity of the testator at the time of making the will, it was held that an executor who took a pecuniary interest under the will was a competent witness to support it; because the verdict in that case would only have the effect of establishing the will as to the real property. It would not be any evidence in the Ecclesiastical Court, upon a question whether it were a good will as to the personalty; nor would the probate granted to the executor have been any evidence of the sanity of the testator on the trial of the ejectment. In any proceeding to establish the will as to personalty, the ejectment would be treated as res inter alios acta (r). A verdict in an action of ejectment, for the purpose of trying the validity of a will as to realty, is not admissible in a suit respecting the same will in the Ecclesiastical Court (s). There seems to be only one instance in which the capacity of an agent to do one act is conclusive as to his capacity to do another, and that is the case of a fine and a deed leading the uses of such fine (t). By a recent statute (u), every certificate upon which any order shall be given for the confinement of any person in a licensed house, kept for the reception of insane persons, must (amongst other things) be signed by two medical practitioners, who shall have separately visited and personally examined the patient to whom it relates. But such a certificate is not legal evidence of the insanity of the person described in it. 18. Though, in general, the opinion of an individual is no evidence in questions of science, yet persons skilled in a particular art or science may be called to state what their sentiments are respecting any point within the scope of their particular inquiries. On a trial where the defence was insanity, it is reported that the Judges were of opinion, although they did not come to any formal resolution, that a witness of medical skill might be asked, whether, in his judgment, certain appearances were symptoms of insanity, and whether particular acts, proved to have been committed by the prisoner, were likely to produce a paroxysm of that disorder in a person subject to it; and that, by such questions, the effect of the testimony in favour of the prisoner might be got at in an unexceptionable manner. But several of the Judges are said to have doubted whether a witness could regularly be asked his opinion on the very point which the jury are to decide, namely, whether, from the other testimony given in the case, the act as to which the prisoner was charged was, in his opinion, an act of insanity (v). But, in a recent case, where the prisoner's defence was insanity, a medical man who had heard the trial, was allowed to be asked whether the facts proved shewed symptoms of insanity. The prisoner was indicted under 9 Geo. 4, c. 31, for cutting and maiming his daughter, with intent to murder, maim, and do her some grievous bodily harm. The fact of cutting was clearly proved, and the case for the prosecution disclosed facts and symptoms of insanity arising from religious fanaticism; and it was shewn, that the prisoner had always exhibited the greatest affection for his daughter, until recently before the act, when he had taken up the opinion that he was ordered by the Holy Ghost to shed human blood as the only means of salvation. It was proposed to call a physician, who had heard the whole evidence, to give his opinion as to the insanity of the prisoner. Mr. Justice Park doubted whether this could be legally done; but, after referring to the case last cited, allowed the physician to be asked whether the facts and appearances proved shewed symptoms of insanity. And the prisoner was acquitted on the ground of insanity at the time the act was committed (w). 19. The evidence of medical men is often required in cases before Courts of judicature; and however painful it is to be obliged to reveal those secrets, which are confidentially com (v) Rex v. Wright, 1 Russ. & Ryl. Cr. Cas. 456. (w) Rex v. Searle, 2 Moody & Malkin, N. P. Cases, 75. municated to them, it has been ruled that the confessions of a patient to his physician are not within the protection afforded by the law to confidential communications; and though a medical man would be justly deemed dishonorable, who voluntarily violates confidence reposed in him, he cannot withhold facts, when called upon in a Court of justice (x). The forensic duty required of a medical man (y), in all cases of insanity, must be to prove or disprove its existence in an individual to whom it may be imputed, or in whom it may be suspected to be feigned. No illustrations can be requisite, to shew why either of these may be the case. The annals of equity furnish many instances of attempts to wrest property from the possessor, or to remove a person from situations to which a greedy eye has been cast by others, on the score of mental incapacity for administration; and criminals have often attempted to elude the penalty of the law by setting up, or allowing to be set up, the plea of insanity. Instances are on record, where the person himself has disavowed the plea, when urged on his behalf by his friends (2). The resistance of hunger, cold, and sleep, affords perhaps the best test for distinguishing cases of real insanity from cases where the disease is only feigned, and appearances of it put on to answer particular purposes; at least, where this power of resistance is present, there is good reason to conclude that the affection is not feigned. Where lunacy is feigned, it may be impossible to determine that it is so, without watching the patient for some time, when he does not know that he is watched, and by night as well as by day; by which he will almost infallibly be detected. (x) Peake on Evidence, p. 188; 1 case, Annl. Register, 54 Vol. p. 304. Starkie on Evidence, 105. (y) The duties of medical men, when consulted concerning the state of a patient's mind, are well pointed out by Dr Conolly, in the tenth chapter of his work, intitled, "An Inquiry concerning the Indications of Insanity." (z) See Lord Ferrers' trial, 19 Vol. Howell's St. Tr. 947; Bellingham's There is no disease more easily feigned or more difficult of detection than insanity; and many great men of ancient times simulated it, in order to elude the danger which impended over them, as Ulysses, Solon, and Brutus (the expeller of the Tarquins); to whom may be added King David, (1 Saml. ch. 21, v. 13). |