English Case - Davies v. Jenkins.

answer to say that the defendant is innocent of moral wrong. It has been held that an action will lie against a party for issuing a ca. sa. against a wrong person or for driving a carriage against the carriage of another. The cases cited are cases of malfeasance-this is one of positive negligence; and wherever a party suffers directly and immediately from the negligence of another, he may maintain an action. Langridge v. Levy, 2 Mee. and W. 519; 4 idem. 337: Anderson v. Watson, 3 C. and P. 214.

LORD ABINGER.I have no doubt about any part of the case. This declaration is bad on the grounds of the special demurrer which have been assigned. Even supposing Mr. Henderson right, it is bad, because on the face of it it discloses the cause of action, if any to have been tresspass, by executing a fi. fa. against a wrong person. This is a new attempt, and to the best of my recollection, the first of its kind. If encouraged, it would give rise to abundance of actions against attorneys. What are the facts? The defendant, an attorney, is instructed to bring an action against one David Davies, and the plaintiff, another person, happens to bear the same name. Had the process been served on him by mistake it is obvious that he must defend the action, which would result in his getting a verdict; but the process is served on the right man, and execution is issued against the plaintiff, without any malice, but through mere mistake in the name, and the sheriff takes his goods in execution. He is, therefore, entitled to bring an action of trespass, for nojudgment was entered up against him, and he would recover on proving that the proceedings were really against another person. All this is consistent with the facts stated in this declaration. If, as the declaration alleges, the plaintiff never was sued at all, from the beginning to the end of the action, how he could imagine that the proceedings were against him it is difficult to conceive. Suppose the whole proceedings from first to last were a mistake, that the plaintiff in a former suit brought his action against a wrong person, is an action to lie against his attorney? If that position could be maintained, what disagreeable consequences might ensue. If an attorney be guilty of negligence in not ascertaining the identity of the individual against whom

the action is to be brought he would be equally liable, if his client had instructed him to make inquiries whether a debt was due or not, and he had come to a wrong conclusion. If a debt were really due by

the defendant, and the plaintiff gets a verdict, is he to bring an action of negligence against the attorney? Unless it is charged that the attorney acted maliciously, no action will lie. Suppose an attorney brings an action against A. B. and C. D., partners, but on the trial fails in proving C. D. to be a partner, is an action to lie against him for negligence, for not ascertaining the names of the partners before he issued process? If that were so, it would ultimately come to this, that an attorney would be liable to an action for every mistake he might make in suing out the process of the court. In this case, however, it is sufficient that if the party against whom execution issued, had applied to set it aside, the court would have done so, and left him to his action of trespass, which, according to the declaration, he was entitled to have brought. Here there is no pretence for malice. I therefore think this declaration bad, both on special demurrer and the general grounds I have stated.

Gurney, B., concurred.

Rolfe, B.-There are two modes of construing this declaraiion. Either the process was sued out against the wrong David Davies up to the time of execution, or all the proceedings throughout were against the wrong David Davies. On the mere ground of this uncertainty, we ought to hold this declaration bad on special demurrer, but utrum horum mavis accipe, in either view, the declaration is bad. If it mean that the process was rightly issued against the present plaintiff, then the action should have been against the sheriff for taking the goods of a party against whom no judg ment had been signed. If on the other hand, the declaration mean that the proceedings from beginning to end, were conducted against the wrong person, then that person would have a good defence, and might recover his costs. The law allows him no further remedy for the process being issued without any malicious intention, it is damnum absque injuria, and no action will lie. We all know that he will be put to some extra costs, for which there is no remedy.

Judgment for defendant.

THE

Rew-York Legal Observer.

VOL. III.

NEW-YORK, APRIL 1, 1844.

THE PLEA OF INSANITY IN
CRIMINAL CASES.

ARTICLE II.

IN Oxford's case, Lord Denman, Ch. J. referring to the moral guilt of the prisoner said, "The question will be, whether the evidence given, proves a disease in the mind as of a person quite incapable of distinguishing right from wrong.

The question is, whether the prisoner was laboring under that species of insanity which rendered him quite unaware of the nature, character, and consequences of the act he was committing; or in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime ?"*

wrong

So also in the late trial of Daniel Mc. Naughten, Chief Justice Tindal, in stopping the case, observed to the jury, that the question which at last would be submitted to them, would be, whether at the time the act was committed, the prisoner had such a competent use of his understanding, as to know that he was doing, by the very act itself a wicked and ful thing. If, when he committed that act, he was not sensible that it was a lation of the law of God or man, undoubtedly he was not responsible for that act, nor liable to any punishment whatever; and his lordship added, "If, on balancing the evidence in your minds, you think the prisoner was capable of distinguishing between right and wrong, with respect to this act, he is then a responsible agent, and liable to all the penalties which the law imposes." It is true the jury were here directed to acquit, unless they were satisfied that the prisoner was aware that he was violating the laws of man; but the language employed, though capable, in strictness, of this construction, was

9 C. and P. 547.

No. 3.

so blended and dovetailed with other expressions which pointed simply to a breach of the laws of God, that no jury would have felt themselves at liberty to consider the former question apart from the latter. Indeed, it is clear, from the whole tenor of his lordship's observations, that the learned Judge never intended that the questions thus put should be treated in the disjunctive. The allusion, therefore, to the laws of man had no practical bearing upon the point at issue, and its consideration formed no distinct element in the verdict which was in fact pronounced.

If then, the common law can be ascertained, as is undoubtedly the case, only by examining the decisions of courts of justice, and the language of the judges, the cases we have cited redundantly prove, that, in questions of insanity, legal responsibility is, in law, a convertible term with moral guilt; that is, the criminality of the prisoner is tested by a reference to that species of delinquency, which man has no possible right to punish, and which, of necessity, must be inscrutible to the finite eye of human justice. Now we conceive that this principle is clearly erroneous.

Human laws have no further connection with divine injunctions, than as the transvio-gression of these latter is prejudicial to the interests of society. To ask therefore, whether a person charged with the commission of crime, knew that he was transgressing the laws of God, and could distinguish between right and wrong, good and evil, is beside the real merits on which a decision is required. In all cases of suspected insanity, the simple question should be, was the prisoner aware that he was contravening the law of the land? If he was, the verdict should be guilty.

Mr. Stock, in allusion to this subject, has made some very sensible observations. tis from liability to punishment for any "If, in order to exempt non compotes menact, it is only requisite to establish their inability to distinguish whether that act is right or wrong, their unconsciousness

Plea of Insanity in Criminal Cases.

Practical Points.-Jury.

When called the concurrent opinion of all parties that upon for his defence, he deliberately there was neither corruption nor favor. If avowed and justified his conduct, and closed his address by boldly asserting (and no man ever doubted his sincerity,) "Finding my principles accord with the proposed measure, I joined the conspiracy; and under the same circumstances I would do so again."t

"to administer justice, and in doing so, U. s. circuit court for the Southern District

not to permit ourselves to be influenced by any apprehension of the opinion which the public may form. If the learned Judge who tried this cause had thought the verdict had been contrary to the weight of evidence, a circumstance which would have induced us to look to some motive for it, or if any corrupt motive could at once be seen, we might be inclined to set it aside; but here it is alleged to be

N. Y. Circuit Court, (In Equity)-Armstrong v. Hanlenbeck and Comstock.

and polishing knives, entered into an agreement with H. whereby he assigned and released to the latter all his right, &c. to the patent so far as the exclusive right of manufacturing and vending the machine should extend for a term of years in consideration of a weekly payment of $10 for such privilege. The agreement contained a proviso as follows:-" It is further provided and agreed that, if the weekly payments aforesaid shall remain due and unpaid for four successive weeks, that then it shall be at the option of the said party of the first part, [A] (upon showing proof of his having demanded payment thereof,) to claim and take back the interest in the said letters patent, &c. On the 4th January, a demand was made of H. for $100 weekly arrears since October preceding and the next day a suit was instituted by A. against H. upon which H. appeared on the 8th January, and confessed a judgment for $100 for arrears due from 16th October to December 25th 1843. A. subsequently served a notice on H. claiming to exercise the option of taking back the interest in the letters patent conformably to the terms of the agreement. H. however, disregarded the notice, and continued to manufacture and vend the machines. On a bill filed for an account and general relief: Held, That the confession of judgment by H. at the suit of A. amounted to an admission by H., that the weekly payments were in arrear, and that legal demand of payment had been made,-that cons quently the proceedings of H. since the 8th January were not justified by the agreement, but were in violation of the complainants right Held also, that the agreement conveyed no interest in the patent right, but amounted to a mere licence, with a limitation or condition at its conHeld also, that the institution of proceedings by A. to recover the arrears due, did not thereby affirm the licence, and that the doctrine in respect to forfeiture of leases in cases of re-entry and and distress for arrears of rent, had no application to such an interest as that assigned.

tinuance.

THE facts and circumstances of this case are fully stated in the opinion delivered by the learned Judge.

John Cook, for the complainant. A. Crist, for the defendant. BETTS, J.-The bill prays an injunction and account, and general relief in respect to the violation of a patent right granted the complainant.

The essential facts upon which the suit is founded are, that under letters patent issued January 4. 1842, to the complainant, he became proprietor of the right to a machine for cleaning and polish ing cutlery, and that by an agreement in writing entered into between him and the defendant Hanlenbeck, on the 17th of March, 1843, he assigned and released to the latter, all his right, title and interest in those letters patent, as far only as the

exclusive right of manufacturing and vending the said machine shall extend, for the term of seven years from the 5th of April, 1842, on the consideration of a weekly payment of $10 for such privilege, with the right to the assignee at any time during that term to terminate the agreement by re-assigning his interest to the grantor.

Neither party was "to have the power to sell or use the patent right or any part, right, title or interest thereof, without the written consent of the parties."

The agreement concluded with this stipulation, "It is further provided and agreed between the said parties, that if the weekly payment aforesaid shall remain due and unpaid for four successive weeks, that then it shall be at the option of the said party of the first part, (upon showing proof of having legally demanded payment thereof,) to claim and take back the interest in the said letters patent, hereby conveyed to the said party of the second part, and to have and to hold the same as fully and entirely as if the same had been re-assigned to him by the said party of the second part."

On the 4th of January demand was made of the defendant Hanlenbeck for payment of $110 weekly arrears since October 16th preceding, and the next day, suit was brought therefor on summons in the Marine Court, returnable the 8th day January. On the latter day the defendant appeared and confessed judgment on the demand to $100 for arrears from October 16th to December 25th, 1843.

On the same day the complainant served a written notice on the defendant Hanlenbeck, that he exercised the option secured him by the agreement, and took back the interest, &c. conveyed by it, "because the stipulated weekly payments have been and are in arrear and unpaid for more than four successive weeks, and payment thereof has been legally demanded."

The bill charges that the defendants since the 8th of January last have continued to manufacture and vend the machines, and now have them on hand and in process of manufacture.

The bill is opposed upon two general grounds, 1. That the defendant always tendered the weekly payments within the times limited, but the complainant refused to receive them, and that accordingly there was no default. 2. That the complainant