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London, England, 1826-02-10 00:00:00

dente proved that the plaintiff came hire to do that which was not
legal : he was a stranger it was true; but being in England he was
bound to conform himself to English law. The averment stated
enough for all his present purposes; but suppose its language bed
been something brunder—auppose it had stated that the plaintiff,
deputed by Doh Bernardo O'Higgins as roving commissioner (for it
appeared he wee ordered to all the courts on the face of the globe.),
&ought to raise a loan in England in behalf of. certain persona who
had thrown off their allegiance to their sovereign ; and farther, that
plaintiff having been libelled in matters relating to this transac-
tion, sought to recover damages. If this had appeared on the re-
cord. would not their Lordships have said that the plaintiff claimed
that which he knew was contrary to law? Now this was absolutely
the nature of the averment. It the plaintiff had averred that leis
moral character had been libelled, then lie might have maintained
Its action t but he had mixed himself up with political trans.
:labile: which involved the question of legality.
that
The Loan CD MT JUSTICE—Suppose tile libel had been,
the plaintiff had picked some person's packet of these bonds, would
it have been an answer to have said, the transaction of the borate
was Wept ?
Mr. Segeant SPANXIE said the plaintiff might have confined
himself to the matter of the libel, and not involved the question re-
lative to the bonds. Suppose a smuggler were libelled by being
called a dishone.t smuggler, it being imputed to him that he had
not fairly divided among his isasociates, according to agreement,
the spirits illicitly ebtained, bat instead of so doing had appro.
primed to himself the greater portion,—this hypothesis tali the
case under' argument were tolerably analogous,—could an action
for damages be sustained ? Could the Court take cognizance of
such an illegal transaction?
The Loan Curve. Jraricr—Your caw is ingenious. brother
Spankie, and at first staggered me; but here the plaintiff rind de-
fendant would be partners in the illegality. Here the plaiutiff was
charged with fraud ou John Hull, who was no party.
BIN Sergeant Srategit:—llly Lord, the Bank of England held
the parchment. morbeaging the lands of the Colonies, which lands
were about as tangible as an acre of land in the moon. It was on
the faith or this parchment that the English capital had cmi.
grated.
The LORD COM' JUSTICE—I recollect when a throne was
lodged in a place of leas importance than the 11. ink—I mean the
s3ignoient of the throne of Corsica, which laid to the county of
Surfey Sessions Court.
Mr. Sergeant SPAN XlE—And got no bidders, I believe. The
Learned Ser,,amnt said that it would be as reasonable for it Captain
Macheath, charged with having appropriated to himself, instead of
having equally divided it, too large a share of the booty he had ob-
tained from the harmless traveller on Hounslow Heath, to assert
that he was libelled, and entitled to damages, as it was for the
present plaintiff to make the claim he did. The Court could not
admit the present claim without admitting that the transaction was
legal. Hunt v. Bell, Ist Hingham, was a case of libel, impaling
the taking of money under false pretences. The Court decided'
that it was of and concerning the plaintiff in Illegal transactions of
sparring, so he could not recover. It' die jury could have tinder.
stood that the present transaction was not lawful they would have
decided differently.
The LORD Crime' JUSTICE said he did all he could to press
thie.point on their consideration. .

1%1.1. Sergeant SPANsm—The duty were not able to make the
I distinction ; this libel had no relation to the plaintiff's goperal Oita.
racier. If he had confined the nature of his claim, he might have
sustained it; but the details had led to the question of right, and
the Court would not consider the illegality of the one party without
weighing well that of the other.
The Loan CUlsv JuSTlCc—BrotherTaddy, you obtained leave
on a previous day to move in arrest of judgment. The Court will
hear you now, if yon are prepared, or to-morrow, it being of opi-
nion that this question may as well be settled at once. The Court
is desirous of having the case as fully before it as passible, that its
its decision way not run the risk of being set aside in another
place.
Mr. Sergeant TADDY wished to know whether the other side
intruded to stand on the general verdict.
The Loan ClllEr JUSTICE —They must : it would be impos.
I Bible now to say what damages the jury have given on each sepa-
rate count. The damages cannot be separated.
Mr. Sergeant Tstior then moved for a rule nisi on the last
count, and the last but one, on the ground that the lauendo was
too large. It attempted to give to the language of the libel a more
extended meaning than the words would bear. The eighth count
set out the libel as follows :—.•"fhe plaintiff lett no time in trans-
ferring himself to Paris with 200,0001. of John Bull's money."
Then followed the inuendo--" meaning to infer that he had de-
frauded the English nation of that sum." Now the only word on
which this inference could by possibility rest was " transferring."
This surely did not state fraud. The ninth count was liable to the
objection that it only set out that fraud was imputed without de-
scribing the nature of the fraud.
Mr. Sersteant Vatic HAN would show cause on Saturday. lie
apprehended he could enter up judgment on any count that was
good.
The Loan CHIEF Juertc E.—This was a case of slander, and
was therefore widely different from other actions. It was impos-
sible to say what damages were given at Nisi Prius on each
distinct count.

Mr. Sergeant VAUOIIAN trusted it would not go forward to
the world that the states of America were implicated in any
fraud.

The LORD Curti. JUSTICE—I am bound to say to that,linked
as we now are with the independent States of South America, they
are entitttd to the greatest respect. Our prosperity is dependent to
a considerable extent on theirs, and therefore, both as a citizen of
the world and as their individual well.wistter, I trust that nothing
which has here transpired will receive a wrong construction. My
brother Spankle has argued this cane very ably, and the observe-
tiona he bits made have been called forth by the necessity which
existed for considering those States, not as they now are—recog-
nised by the King of England—but at they were before the recog-
nition took place. •
Rule :Nisi granted.
PREROGATIVE COURT, COURT, THURSDAY, Fen. 9.
[Before Sir JOHN NICHOLL, KXT.I
DEW V. CLARKE.
The reading of the voluminous assignations having been ron.
eluded on the last Courrt.day, this curious and important case now
name on fur argument. Our readers will recollect that the case
turned upon the validity of a will executed by the late E. Stott.
Dr. Le au tx o TOW appeared to support the legality of the will.
He said diet the question hinged upon a principle which had
never before been advocated in any Court. It was sought to4nz4
peach the will of the late E. Stott on two grounds ;—that the de:
ceased laboured under a partial insanity with respect to hid
daughter, Mary C. Dew, and that he was generally of unsound
mind. As to general unsoundness of mind, at had so often been
considered that it required little observatten but the point of partial
inanity required some consideration. The case of Greenwood v.
Greenwood bad been referred to, as bearing on this part of the case;
but he did not conceive that it was applicable. The facts of that
cue were simply these:—Mr. Greenwood became insane two days
after the death of his hither. He laboured under the idea that his
brother, sister, tutor, and some other persons, had formed a con.
.piracy to murder hint. In his general conduct Mr. Greenwood
area rational and consistent. His letters evince the correctness of
his understanding, but yet he continued to labour under the debt.
Men for about two yen,, when he died, and left his fortune to a
cousin, disiuharking his brother and sister. Lord Kenyop told
'the Jury, in that able, that unless they believed the deceased la..
-bound under general unsoundness of mind, they must consider the
ssill valid. Mr. Greenwood's unsoundness cf mind at a partici-
' lest period was admitted, and the question was, whether lie had re-
covered from that insanity ? But in the present ease no insanity
was admitted, and the question wt.?, whether there was any insanity
'at all ? Perhaps the nearest approach to the present case was that
.of Liodo it. Linde. Here the testator was under the delusion
that he held converse with spirits. His physician refused to cer-
tify that he was of unsound mind, but certified that he was
capable of accepting bills to the amount of 100,000/. In Linda's
case the will -war set aside, but all the facts of the case did not
bear on the case now before the Court. The testator, at
the time of executing his will, was aged, and in a very in-
ilrni state of health and underatandiwg.
„These. circumstances
Irtrodperedresentt.haticsevrocopeogil4:c.ahtwe?l, an
ichwdastostinggitlitisitioed
beat fro!
tarred at the other side was, that the deceased was mad on one
t, his aversion to his daughter, and that an his acts connected
with that poins.were null and void, but that his acts on every other
point were good and valid. Dr. Jenner's arzunient was, that all.
kis acts respecting his daughter were insane, but that all other acts
of his were performed.dpoug • lucid intervals, and were therefore
valid. Lard Chief Jetice Ilale's sentiments on 'nodal nildness
tams worth the attention of the Conn. In his Pleas of the Crown,
.chap. 4, p. 49, he said that there was a kind of partial madness
Which could not excuse the corurnis,ion of capital crimes. All
persons who committed crimes of touch is nature may be considered
as labouring under settle degree of insanity t be it was difficult to
determine lier.v far humanity should actuate us in considering such
erimes,.and how far we nut it to be governed by a consideration for'
public justice. It was ditaeok, be said, to disungnish partial from
general insanity: but lie would say,' that although n per.on should
labour under a distemper of mind, if that person ordinarily pos.
wooed that degree of understanding which belonged to one of the
age of fourteeo years, tint
_person was acceptable for his or her
acts. • This explanation of Lord Chief Justice ill!es was fat from
being satisfactory, nor could the principle be laid down in very
clear mime. Dut though it wits difficult to say it hat constituted
insaalty, it was not wo elffieult to say what was not insanity. A
matt 'could not toe'ettid to be of noseend mind on any particular
question if a certain• number of rational persons viewed his con-
once oh that point as consistent, and not as irrational. The opinion
of the majority on any person's conduct could not easily be ascer-
tained, a.ld when paa.sloa was interested the majority were gene-
rally wrung ; bur when a number of persons agreed that an Indivi-
doans condor'. was two ireational, it was bold to say that such con.
duet waa evidence of insanity. There were insioneeit of daily oc-
currence -' ' '• could not l'" viewed ' ..
• .... -.
ing their a with ,
hcritinf The
could ni
for gene
free ?
was
mad,

ha.
(laughter

ence which could not be viewed • without horror, of fathers treat-
their children with wanton severity, o.ia without Cause disiu-
ting them .The injustice, the barbarity of wich conduct,
1,1 not he denied, but such conduct was not a sufficient ground
setting aside s will, because It coniti not destroy the power of
disposition of pooyAmy. , the doctrine held at the other aide
admitted would go as tar as the gr(.llt lieke',, definition of
Iness. 1,0e1::7 said everything was madness which was no: con.
out with right reason. His hewed Friend must go nearly as
He utast tit)t only prove that the testator's treatment of his
gbtev was ltarharous, and this his aversion was groundless,
that hit( eves bottomed on initanity-.
To manifest his in-
ity it intht be proved that he believed in the existence of things.