Historical outlines of the law. only matter in issue was the fact of the diversion, and that the right to the use of the stream, as claimed, was admitted. The only authority in support of the demurrer, is a Nisi Prius decision made very soon after the new rules of pleading came into operation. Atherton, in reply.-Generally speak ing, the wrongful act is only put in issue by the plea of not guilty, but there is a class of cases in which the plea puts in issue more than the act itself. [Coleridge, J.-How do you distinguish this case from the instance of slander given in the new rules, the plea of not guilty there puts in issue the speaking of the words maliciously with reference to the plaintiff's of fice, profession or trade, but will not operate as a denial of the plaintiff holding the office, &c.] PER CURIAM-We are of opinion that the second plea, traversing the service, was properly pleaded, and that the plea of not guilty does not put in issue the fact of service. Judgment for the defendant. If it were refused, the feoffor might enter and the feoffee would have no remedy. If, however, the payment were not fixed for a certain day, but generally, the heir of the feoffeor could not enter on these terms, a condition for the feoffee to pay, being the same as saying that he would pay during his life. Doubts having arisen as to the place where the money was to be tendered, whether it must be on the land, it was the practice in the mortgage deed to appoint a specific place. Parceners were when daughters, or other female heirs took an estate in fee or in tail by descent; in such case they were all reckoned but as one heir. A partition of such estate in coparenary might be made either by deed or parol, with the general consent of all parties. There was also a compulsory method by writ de partitione facienda. If a man were seized in fee, and had two daughters, and on the marriage of the eldest gave lands in frank-marriage, and afterwards died seized of lands of greater value than those so given, it was a rule that neither the husband nor the wife should have any property in such remnant HISTORICAL OUTLINES OF THE LAW. of the estate, unless they would put their PART IX. EDWARD IV. Littleton describes a tenancy at will to be "a letting to have and to hold at the will of the lessor," but it was understood to be also at the will of the lessee. A tenant at will was not bound to sustain and repair as a termor for years was; but if he committed voluntary waste, the lessor might distrain, or have an action of debt for rent reserved on a lease at will. Conditional estates, such as they formerly existed, had been chiefly converted into estates in tail by the statute de doThat, however, of mortuum vadium, or mortgage (dead pledge) still continued. The common way of making this security was for the borrower to enfeoff the lender in fee, upon condition that if the feoffeor paid to the feoffee at a certain day, such a sum the feoffeor might enter. Sometimes a gift in tail, or lease for life or years, was made in mortgage. In this case, if the feoffeor died before such day, his heirs or executors might tender the money and enter. mis. lands held in frank-marriage into what was called hotchpot with the remnant, and so make an equal division of the whole. If this were not done, the youngest would have the remnant. Except by the custom of gavel-kind, parceners were always females. Joint-tenants differ from the former, in that they take by purchase, that is by the act of the parties, pareners always taking by descent, and in that joint-tenants have benefit of survivorship, whereas upon the decease of one parcener leaving heirs, they would be entitled to her share. A joint-tenant could neither encumber his estate, or devise it. Both of these acts might be done, however, by a parcener. Joint-tenants were said to be seized per my et per tout. Tenants in common might devise their estate either by descent or purchase. They came to their land by several titles. Neither tenants in this nor the former estate were compellable by law to make partition, although in both cases it might be effected by agreement. The tenancy in both cases would also apply to chattels real and personal, as well as to freeholds. THE New-York Legal Observer. VOL. III. NEW-YORK, MAY 15, 1844. THE PLEA OF INSANITY IN CRIMINAL ARTICLE 111. IT may perhaps be said that the Judges when speaking of "right and wrong," mean legal, not moral right and wrong; and lawyers may assure us that when a man acts according to law he does right, when contrary, he does wrong. It would be no dangerous task to join issue on this assertion, and by shewing that these words are used synonimously with "good and evil,” which by no ingenuity can be made to bear this forced construction, to shew also that they refer, and refer only, to the obedience and transgression of the laws of God; but admitting that we are in error respecting the strict technical meaning of these expressions, and that for once lawyers "ken their own lingo," we are very certain that neither juries nor the public conceive this interpretation to be the correct one, but merely consider right and wrong with reference to virtue and wickedness. Then why adopt words which are calculated to mislead? If the power of knowing right from wrong is, in fact, the power of knowing what acts are according, and what are contrary, to the laws of the land, why not use this latter phrase, which is at once understood by the meanest capacity? It can serve no purpose, but that of confusion and consequent injustice, to employ language which admits of two interpretations, and which will be construed sometimes in one way, sometimes in another, according to the knowledge, tastes, or fancies of the parties to whom it is addressed. Did the prisoner know that he was transgressing the law? This is intelligible, and raises a distinct question; but in order to ascertain whether it is adviseable, in cases of doubtful madness, to adopt 'such a test of legal responsibility, let us examine its practical application. A man No. 6. destroys his friend under a maniacal impression that he is a demon, a brute beast, or an inanimate stock. He is clearly no object for punishment...He does not know that he has transgressed the law. So also, if he be subject to a delusion that a certain person is directly attempting his life, and if, in ideal self defence, he kills that man, he is still an irresponsible agent; for though he has taken the life of a hu man being being, he has committed no murder, but has acted in the belielf of facts, which, if true, would justify his conduct. On the other hand, let us suppose that his insanity consists in an idea that a multitude of persons have conspired to annoy or ruin him, and that in the exasperation consequent on this conviction he murders one of his fancied persecutors. Is this man responsible? We contend that he is not. Had his imaginary grievances possessed an actual existence, could they have been pleaded in justifica tion of his crime? Again, the lunatic insanely imagines that his brother is possessed of enormous wealth, and that in the event of his death the inheritance will devolve on himself. Roused by the feeling of avarice, which his distempered mind embodies in the shape of a demon suggesting murder and riches, he shoots his brother, and when put upon his trial pleads insanity. Shall the proved existence of this insane belief, screen him from the penal consequences of his crme? Most assuredly not, unless it can further be shown, by indisputable evidence that in committing the act of fratricide, he knew not that he was transgressing the law. The belief that a disgraceful death will immediately follow the perpetration of an act must, so long as death is an object of terror, and men are influenced by that passion, have a natural tendency in checking its commission. The act, indeed, will not in all cases be prevented; since the feeling of dread will sometimes yield to the love of gain, the thirst for revenge, the violence of passion, or the morbid sense of Plea of Insanity in Criminal Cases. duty, still, the fear of punishment will, in the great majority of instances produce a salutary effect; and that effect, will be increased or diminished, in proportion as the belief that punishment will. ensue is strengthened into confidence, or weakened into doubt. Now the only human means of rendering belief certain, is to render the act believed certain also. We feel sure that the sun will rise to-morrow, because it has risen today; and rose yesterday, and during every day of our lives. We believe that the deliberate murderer will be executed, because such for a long period of time, has been the uniform course of law. If then all men who knowingly transgressed the law were punished as malefactors. even though they acted in the insane belief that they were obeying the mandates of the deity, the unhappy victim of such a delusion would assuredly be less likely to commit a crime, than if persons subject to the same grievous disease were considered and treated by the law as irresponsible agents. The dread of present punishment might counterbalance the hope of future reward. The insane feeling of duty might yield to the same feeling of cowardice. We admit that in arriving at this conclusion, we assume the existence of two facts; first, that men partially deranged are liable to be influenced by fear; and secondly, that such persons are so far capable of reasoning by analogy, as to apply to themselves examples derived from the conduct and fate of others who have unfortunately been subject to similar delusions. On the first point the correctness of our assumption admits of no doubt, and indeed the discipline which prevails in every lunatic asylum is mainly founded on its recognized truth. The universal object of the different governors in these asylums is to inspire the unhappy inmates with a wholesome dread of their authority, and although of late years it has been mercifully attempted, and frequently with signal success, to influence the conduct of the insane by appealing to their kindlier feelings and sympathies, yet the power of fear in checking the ebullitions of madness has never yet been disregarded, much less denied. But the question still remains, how far is a mad man capable of profiting by example? Or in other words, can he comprehend in the death of a malefactor, that the punishment is the the result of the crime, and that if he himself offends in a similar manner he will incur a similar penalty? We have no means of giving a positive answer to this question, and perhaps, from its very nature, it admits of none. The forms of madness are so varied, and its degrees so different in intensity, that no rule of universal application can be laid down, but we believe it will be generally, if not always found that all persons whether partially insane or not, who are capable of knowing when they transgress the law, are also capable of being restrained by the example of punishment. In support of this position we would refer to a fact mentioned by Dr. Mayo, as coming from good authority.* When Martin had set fire to York minster, in England, some lunatics, at a neighbouring establishment, were overheard discussing the probable result of his trial. Some asserted that he would be hanged; but one triumphantly replied, “Oh, no— he is one of us." This anecdote is also quoted by Mr. Winslow, who furnishes, in addition to it, the following case. "An intriguing, unruly, vicious madman was detected with a piece of iron, which he had contrived to shape like a dagger; into this iron he firmly fixed a handle. The weapon was taken from him. He immediately became excessively abusive, and he was placed under restraint. After this he was more violent, and uttered the most revolting imprecations. In a fit of fury, he exclaimed to the keeper, "L'I murder you yet; I am a madman, and they cannot hang me for it." These cases do not directly establish the truth of our position, but they go some way towards it. In the one, we see lunatics discussing the defence of insanity, in relation to a crime committed by a stranger, and in the other, a madman is actually relying on that plea as a recognized protection to his future acts. in Hogarth, insists that an elector who PRACTICAL KNOWLEDGE.-The lawyer had lost his arm, cannot be sworn, as he cannot take the book in his hand. Insanity by T. Mayo, M. D. 1884. (p.40.) * Essay on the relation of Theory of Morals to Practical Points-Signatures to Deeds. PRACTICAL POINTS. SIGNATURES TO DEEDS. deed." The act itself being declared to be for the "prevention of frauds and perjuries," must of course be liberally construed. (See Dwarris on Statutes, vol 2, p. 361; and Roberts on the Statute of Frauds.) Ir seems to be doubtful in Westminster Hall, whether in the case of deeds sealed and delivered, the signature of either party Much has been written and spoken upis necessary, regard being had to the on the question of what is to be deemed a statute of frauds. A recent case in sufficient signing, but this is not to the the Court of Queen's Bench, (Gooch v. point, which is, whether a deed being Goodman, 2 Gale and D. 159;) in sealed and delivered, would be invalid which the point was raised upon the from the want of a signature. The lanpleadings, and in argument, although not guage of Sir William Blackstone, (vol. 2) expressly decided, has tended to confirm is cautious," It seems to be now as necesthe opinion that deeds, as distinguished sary as sealing, though it has been somefrom mere agreements, are not within the times held that the one includes the other." statute. As a matter of prudence and pre- Mr. Stewart, in his edition of the commencaution, deeds have always been signed, taries, adds, " and the more modern opinion, and will continue to be so, but the weight perhaps, is, that the statute of frauds is of authorities seems clearly to shew that applicable only to mere agreements, and a deed unsigned would be perfectly valid, that signing is not essential to the validity notwithstanding the language of the sta- of a deed." Such seems to be the opinion tute of frauds, of which Lord Nottingham of Mr. Preston, (Shep. Touch. 56 n. 24,) is said to have declared that "every line of Professor Wooddeson, and of Mr. was worthy a subsidy." The words of Hayes. "As to the clause," says Prothe section are, "That all leases, estates, fessor Wooddeson, "which speaks of interest of freehold, or terms of years, or signing, it has been held, that subscribing any uncertain interest, of, in, or out of any a deed, as a witness, and not as a party, hereditaments, made or created by livery provided the contents are known is suffiand seizin only, or by parol, and not put cient." (3 Wood. Lec. 427.) Mr. Hayes, in writing, and signed by the parties so in his work on conveyancing, remarks, making or creating the same, or their "signing is not essential to a deed, except agents lawfully authorized, shall have the so far as the statute of frauds requires force and effect of leases at will only, and deeds relating to lands to be signed. (But shall not either in law or equity be deemed see Shep. Touch. by Preston, 56, n. 24.) or taken to have any other or greater The only doubt thrown upon these dicta, force or effect, any consideratioe for mak-is by Sir Edward Sugden, in his work on ing any such parol, leases or estates, or any former law or usage to the contrary notwithstanding." In the recent case before the Court of Queen's Bench, Lord Denman, referring to a former case, observes, "It does not seem to have occurred to the court or counsel that the words "signed by the parties," &c. might apply only to instruments under seal. "The argument is, that as the previous words are "made or created by livery and seizin only, or by pa rol," the distinction apparently intended to be established by the statute was, between estates or interests created by a formal instrument, and those created by mere matter in pais, which must be established by the fallible recollection of wit. nesses. And Mr. Justice Patteson suggests that "the words of the statute" auhorized by writing "can hardly apply to a powers, 216, and by Mr. Jarman, (Jar. and Byth. Conveyancing, by Sweet, vol. 3, p. 270,) who says, "Mr. Preston's remark that the statute does not extend to deeds, is too general." The latter gentleman, however, when treating of bonds, admits that a "bond with a penalty is good, without signature, if sealed and delivered." The subject is one, perhaps, of more interest than importance, inasmuch as usage and prudence, apart from statutory enactment, have invariably suggested the propriety of signature in addition to sealing and delivery. In the case of a corporation, it is well known that the deed is perfected by the seal. A case, however, may occur, where, from neglect or accident, all the ceremonies connected with a deed have been observed, except that of signature by the party, and the question may receive a judicial determination. Supreme Court.-Pacey v. The Mayor and Common Conncil of the City of Brooklyn. SUPREME COURT. Supreme court of the State of New York. Considerable was said on the argument, of the plaintiff's own neglect, in not securing his buildings. It appeared at the trial, that he raised the foundation as the corporation had directed, with a view to the grade, and no, attempt Before the Hon. SAMUEL NELSON, C. J., was there made to shew that the work and Judges BRONSON and CowEN. JOHN PACEY V. THE MAYOR AND COM- CONSTRUCTION OF STATUTE. By the 40th section of the Statute incorporating the city of Brooklyn, it is provided that "the Common Council shall have power to cause all streets and parts of streets, &c. to be graded, and to cause cross walks to be made, and drains and sewers to be constructed." In the course of grading certain streets, the requisite drains and sewers for carrying off the accumulation of rain water were omitted, in consequence of which the plaintiff sustained an injury. In a suit for compensation the Judge charged the Jury, in accordance with the rule laid down in York v. Furze, (3 Hill, 612), that though the words of the statute are literally permissive, yet being of public concern, the statute must, in legal construction, be considered peremptory. Held, that such charge was correct. CASE, tried before Kent, C. Judge, at the King's circuit, in April, 1843, where the plaintiff recovered a verdict for $956 damages. Exceptions were taken by the defendants to the charge of the Circuit Judge, and they now moved for a new trial. The facts are sufficiently stated in the following opinions. G. Wood, for the defendants. COWEN, J.-The fortieth section of the statute incorporating the defendants provides that "the Common Council shall have power to cause all streets and parts of streets, &c. to be graded, &c., and to cause cross walks to be made, and drains and sewers to be constructed." In the course of grading Smith and Dear streets, pursuant to ordinances of the Common Council, the requisite drains and sewers for carrying off the accumulation of rain water were omitted, in consequence of which the injury complained of by the plaintiff was sustained. was deficient. Of course the point cannot be listened to now. Words nearly the same with those quoted from the charter of the defendants were thought by us in the Mayor, &c, of New York v. Furze, (3 Hill, 612,) to be mandatory, demanding the construction of sewers by the corporation in all cases were they were necessary. The reasoning of the Chief Justice in that case applies to the present, although the phrase is literally permissive, yet the matter being of public concern, the sta tute is considered in legal construction peremptory. It is scarcely denied that a sewer or drain was necessary in Dean street. It was admitted at the trial that drains might have been so constructed as to have prevented the injury which tiff's houses. was done to the basements of the plain " The charge of the learned Judge was in accordance with the views taken, in the case cited; and we are of opinion that a new trial must be denied. from the evidence in the case, that the NELSON, C. J.-If it had appeared damage which occurred to the defendants houses, might have been prevented by the filling up of his lot in the block to the level of the grading of the streets, and this ground of defence had been put forth at the circuit, I should have been inclined to grant a new trial; as been imputable to his own. negligence, in that case, the injury would have he not having placed his lot in the con dition which he was bound to do, and might have been compelled to do by the simple order of the corporation. Any delay in filling up the lot before the order should be at his own risk, so far, as respects injurious consequences to the property by reason thereof, the same as if they had happened from neglect to comply with the order after it was given. |