ject to certain provisos in case of marriage, with the further proviso that his nephew should have the option of becoming the purchaser of the whole in fee simple at the rate or price of L.10,000 L.3 per cent. consols; and that upon his said nephew investing the sum of L.10,000 consols in the names of himself and other trustees to be appointed by his said nieces, that then and from thenceforth the use in the said will before limited to his said nieces in the said lands should absolutely cease and determine, and the said lands should forthwith be and enure to the only absolute use of his nephew; and that then and from thenceforth his said nieces should, on request of his said nephew, convey the said lands to the use of his said nephew. And the testator further declared that his said nephew and such other persons should thenceforth stand possessed of the said L.10,000 L.3 per cent. consols in trust for his said three nieces, and that after the marriage of all of them, or the death of the survivor of them, the said trustees should transfer the said principal L.10,000 to his said nieces and their respective executors, administrators and assigns, in three equal shares. The nephew, in the year 1812, having exercised the option given him by the testator's will, entered into the possession of the estates, and forthwith thereupon transferred the sum of L.10,000 consols into the names of himself and two others as trustees for the testator's said nieces. The said nephew survived both his co-trustees, and died, leaving the defendant, his only son and heir-at-law and executor under his will, him surviving, who proved his father's will, and thereby became sole trustee of the said L.10,000 consols upon the trusts declared by the testator's will. It was held, that a duty at the rate of L.2, 10s. per cent. upon the said sum of L.10,000 consols became payable upon the transfer thereof into the names of the trustees as directed by the said will, and that the defendant was liable for that duty.-(The Attorney-General v. Wyndham, 32 L. J., Ex. 1.)

PAYMENT OUT OF COURT.-Where a petition is presented for payment of money out of Court merely, and similar successive applications will have to be made, leave will be granted to make such future applications to the Judge in chambers.-(Winkworth v. Winkworth, 32 L. J., Ch. 40.)

SHIP AND SHIPPING.-Bags of meal, 1670 in number, all marked S.S.C.M., some weighing 12 stones, some 8 stones, were shipped on board defendant's ship, and stowed indiscriminately. Defendant, the master, signed two bills of lading in respect of two different portions of this cargo, one of which described the property intended to pass under it thus: 467 bags meal, gross 35 tons 9 cwt., under the subjoined marks, S.S.C.M.' It also added, 'Contents unknown, and not responsible for weight,' etc. It was held by the Exchequer Chamber, affirming the judgment below, that under this bill of lading defendant was bound to deliver 467 of the 12-stone bags, as the description of the weight given in the bill of lading could only be satisfied by all the bags delivered being of the larger size. Wightman, J.: It may be that the weight of those bags would not be exactly that mentioned in the bill of lading, and that the provision in the memorandum would protect the captain from being responsible, if the bags were not full weight; but the mention of the weight in the contract is important, for the purpose of indicating to which bags the contract applied.-(Bradley v. Dunipace (Ex. Ch.), 32 L. J., Ex. 22.)

BANKRUPTCY.-By section 184 of the Bankrupt Law Consolidation Act, 1849, no creditor having security for his debt shall receive upon such security more than a rateable part of such debt, except in respect of any lien upon any part of the property of such bankrupt, before the date of the fiat or the filing of a petition for adjudication of bankruptcy. The defendant, in an action upon a bill of exchange, obtained an order for a commission to examine witnesses abroad. It was made a condition that he should pay L.100 into court, which he did, and subsequently a petition for adjudication of bankruptcy was filed against him. The plaintiff went on with the action, and recovered a verdict for more than L.100. It was held, that plaintiff was entitled to have the L.100

paid out to him, for that he was not a creditor having security for his debt within the 184th section, and by Blackburn, J., and Mellor, J., that he had a lien upon the L.100 within the meaning of the section.—(Murray v. Arnold, 32 L. J., Q. B. 11.)

BILL OF EXCHANGE.-Where an indorser of a bill of exchange, who has had no notice of dishonour, on being told that the holders are about to take proceedings against him on the bill, says he will pay it if they will give him time,that is evidence from which a jury may infer that he has waived the right to notice. Blackburn, J.: Where a promise to pay is made by an indorser of a bill, with full knowledge of the facts,-being, I mean, aware that he has had no notice of dishonour,-that is equivalent to saying he will not take advantage of the want of notice; in other words, is a waiver; and this I take to be the established law, subject to the qualification given in the text-books.—( Woods v. Dean, 32 L. J., Q. B. 1.)

RENUNCIATION OF EXECUTOR.-An executor cannot renounce after he has taken probate. An executor under the will of a testator domiciled in Portugal accepted the executorship in that country, and also obtained probate in England. Becoming afterwards, through age and infirmity, incapable of acting, a competent Portuguese tribunal permitted him to renounce the executorship, and appointed A. to act as executor in his stead. Upon application for a grant to A. of administration de bonis non, with the will annexed, it was held, the renunciation of the executor, though sanctioned by the law of Portugal, could not be recognised in this country, and that A. therefore was not entitled to the grant prayed.-(In the goods of Veiga, 32 L. J., Pr. and M. 9.)

6

SHIP AND SHIPPING.-Plaintiff was charterer of a ship under a charter-party, by which the ship was placed at the disposal of plaintiff for a certain time; the owners to appoint, victual, and pay the master and officers of the ship; the cargo to be taken on board and discharged by the charterers, the crew of the vessel rendering customary assistance, so far as they may be under the orders of the master, and the charterers are to have liberty to appoint stevedores and labourers to assist in the loading, stowage, and discharge thereof, but such stevedores and labourers being under the control and direction of the master; the charterers are not in any case to be responsible to the owners for damage or improper stowage.' And by another clause, the master and the owners of the ship shall devote the same attention to the cargo, shall use the same endeavours to promote despatch, and shall in every respect be and remain responsible to all whom it may concern, as if the said ship was loading and discharging her cargoes and performing her voyages for account of the said owners and independently of this charter-party. It was held, that under this charter-party the owners were responsible for improper stowage. Williams, J.: At first I thought that this case was very like that of Blaikie v. Stembridge, and was governed by it. But I am satisfied now that that case ought to have no influence at all in deciding this. In that case it was stipulated that the stevedore should be appointed by the charterer, but that he should be paid by and act under the master's orders. It was there held, that the master was not liable for damage to the cargo arising from the negligence of the stevedore, notwithstanding the clause that the stevedore was to be under his orders.' But between that case and this there is this important distinction, that here a clause is added, that 'the charterers are not in any case to be responsible for improper stowage.'— (Sack v. Ford, 2 L. J., C. P. 12.

FIREWORKS.-A person who manufactures and keeps fog-signals, being tin cases filled with gunpowder, and fitted with nipples and percussion caps, upon premises within the distances specified by 23 & 24 Vict., c. 139, s. 6, and for which premises he has not a licence under section 11, is liable to the penalty imposed by section 7. And, by Wightman, J., fog-signals come within the term 'fireworks' in the Act (Bliss v. Lilley, 32 L. J., M. C. 3.)

THE

JOURNAL OF JURISPRUDENCE.

INSANITY AS A DEFENCE IN CRIMINAL PROSECUTIONS. THE recent trial of Alexander Milne for murder has attracted a good deal of attention, both on the part of the public and of the legal and medical professions, to the plea of insanity as stated in defence to a prosecution for crime. We propose to consider the plea shortly from all these points of view, and shall endeavour, in the first place, to show how the law of Scotland now regards it; and in the second place, to make some suggestions which the state of the law appears to demand for the public protection.

In the first place, the plea of insanity may be stated generally to be, that, in respect of the pannel's state of mind at the time of the commission of the act complained of, he was not responsible for having committed it. We are aware that this carries the matter but a very small way. It is, however, exceedingly important to start from a point in regard to which there can scarcely be any dispute.

Let us now consider, 1. the state of mind which will ground this plea; and, 2. the proper time and manner of proving it.

1. The state of mind which will ground the plea of insanity.Our great institutional writer, Baron Hume, does not, it must be confessed, give any very certain sound in his well-known passage as to the nature of this plea. To serve the purpose of a defence in law,' he says (Hume i. 37), 'the disorder must therefore amount to an absolute alienation of reason,-"ut continua mentis alienatione, omni intellectu careat;" such a disease as deprives the patient of the true aspect and position of things about him, hinders him from distinguishing friend from foe, and gives him up to the impulse of his own distempered fancy.' He then goes on to consider whether

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a sense of the distinction between right and wrong is a proper test of insanity; and whether the insanity need be constant, and if not, what the presumptions are that the act was done in a lucid interval. These questions all arise from his having, to some extent, gone wrong in realizing the true nature of insanity, and its effects on human responsibility for crime. The consequences of this error have been very apparent in the practice of the Court of Justiciary from Hume's time downwards. Instead of directing their attention to the sole question, which properly fell to be considered, whether, at the time of the alleged crime, the pannel's reason was so affected by disease as to have lost its power of controlling his will and his actions, judges, and counsel, and medical witnesses have embarked on the nearly impossible, and, at all events, most fruitless inquiries, whether the pannel at the time knew right from wrong, both in the general and in regard to the particular act complained of; whether, if he were subject to delusions, the act complained of was done under their influence; and whether he knew that he was liable to be punished for what he was doing. Fortunately, juries did not allow themselves to be hampered by the consideration of such questions, or by the answers to them, which were pressed upon them by the Court, the counsel, or the medical witnesses. Scotch juries have, as a general rule, applied their minds to the broad inquiry, whether, in all the circumstances of the pannel's state and history at the date of the alleged crime, there was to be found sufficient proof of his reason being so impaired by disease that it was unable to control his will, that is, to guide his actions. If they were satisfied that there was such proof, they acquitted the pannel, whether it had or had not been proved to them that he was altogether ignorant of the distinctions between right and wrong, or of the legal consequences of his acts, or that there was any connection between his hallucinations and the alleged crime.

The law of England, as enunciated by the Judges in M'Naghton's case, 19 June 1843, 10 Cl. and F. 200, went fully as far astray from sound principle as our own law had done at the same period. The opinions delivered in that case were all affected by this fatal taint, that they went on the assumption that a man may be partially sane and partially insane. No greater mistake can be made in considering the question of criminal responsibility. Of course, it can only occur in cases of what are termed monomania, where the afflicted person is the subject of delusions. It can have no place in

But even in monoclear that when the

cases of idiocy, dementia, or general mania. mania, advancing science has made it but too mind is subject to certain delusions which are known, it may be, and most likely is, subject to many others which are concealed. There is truly no such thing as partial sanity and partial insanity (Taylor's Med. Jur. p. 892). To return, however, to M'Naghton's case, the Judges there laid down-(1) that a person acting under the influence of an insane delusion will be punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to the law; (2) that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing 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 he was doing what was wrong; and, (3) that if a person under the influence of an insane delusion as to existing facts commits an offence, he must be considered in the same light as to responsibility as if the facts, with respect to which the delusion exists, were real. If these are the true principles of the law of England, they were entirely disregarded in M'Naghton's case itself, and they have been almost uniformly disregarded by English juries since. The opinions delivered by the Judges are quite inconsistent, not only with the testimony of medical men conversant with the insane, but, what is more important, with the enlightened common sense of the public. One is not surprised, therefore, to find Dr Taylor remarking (Med. Jur. p. 901), in regard to this case, that 'the test of responsibility assumed by it is of a purely theoretical kind, and cannot be carried into practice.'

In the well-known case of Gibson, 23 Dec. 1844, 2 Brown 332, the counsel for the pannel put the true view of the duty of a jury in very clear terms when he observed: It is said the pannel might be insane in some points, and yet be responsible for the particular act of which he was accused. The jury, however, must hesitate before they make this distinction. It is a delicate task to parcel out the intellect,-to say what was sound, and what was not sound. The safer course is to hold that, as there was insanity, there should be irresponsibility.' It is very satisfactory that this mode of treating cases, which has long been followed by juries and recommended by jurists, has at last been authoritatively sanctioned from