William George Henry Cook.

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In Relation to Legal Responsibility





A Study in Psychological Jurisprudence


WILLIAM G. H. COOK, LL.D. (Loncl.)

Of the Middle Temple, Barrister-at-Lazo ;

King Edivard VII
Research Scholar of the Middle Temple.

Thesis approved for the Degree of Doctor of Laws in the
University of London,



Dedicated to


Chief Officer of the Asylums and Mental Deficiency
Department of the London County Council.



Senior Master High Court of Justice, Emeritus Professor of
Comparative Law in the University of London.

Dr. Cook has the good fortune to treat of a subject
rarely dealt with as a whole. There are very many
decisions as to certain aspects of the civil responsibility
of lunatics ; their multitude and variety are per-
plexing. There is no want of text-books dealing with
parts of this subject. But, while criminal liability
has been studied as a whole, and an attempt, more or
less successful, has been made by lawyers to construct
a theory applicable to all offences, there has been no
satisfactory attempt, so far as English law is concerned,
to frame a theory of liability for torts and contracts
and testamentary capacity. Dr. Cook's work, the
result he tells us of an examination of upwards of two
hundred leading cases and of the study of the laws of
many foreign countries, is a novel and comprehensive
survey much needed, and may prepare the way for
a re-statement of our law in accordance with the
teaching of modern psychology. It is still true, as
Brett, L. J., remarked in 1879, that the law relating
to civil responsibility of lunatics stands upon a very
unsatisfactory footing.

It is not easy, and, indeed it may not be possible,
to devise a precise common criterion of responsibility
for delicts or torts and capacity for making contracts
or wills. In the case of torts the essentials may be
much the same as in the case of crimes ; culpa or
dolus must be a necessary element. The chief diffi-
culty is as to torts (if any) for which there is an



absolute liability. Dr. Cook holds — and as to English
law he may be right — that even in the class of cases
of which Fletcher v. Rylands is the classical illustration,
a lunatic incapable of culpa or dolus would not be
liable. But under some systems of law it would be
otherwise. As to contracts, Dr. Cook gives an
interesting and luminous history of the remarkable
changes in judicial opinion, terminating in the decis-
ions in Molton v. Camroux and The Imperial Loan
Company v. Stone, which he acutely criticises and
declares to be wrong in principle. No less instructive
is his account of the law as to testamentary capacity,
as finally formulated in Banks v. Goodfellow ; a law
wisely elastic, affording large discretion to judges and
juries in dealing with the endless variety of cases of
mental deficiency which come before a Probate Court.
It has fallen to me to read much, both in English and
foreign legal literature, on the subject which Dr.
Cook treats, and I am greatly struck by the precision
of his observations and his comprehensive outlook.
His book will, I am convinced, educate professional
opinion, and help to reconcile the lawyer, the physician
and the psychologist.



C.B.E., J, P., D.L., F.S.A., Lecturer in Psychological Medicine
and Physician to out-patients St. Bartholomew's Hospital,
formerly Lt.-Col. R.A.M.C. and Consulting Physician to the

War Office.

Dr. Cook has written a most admirable treatise upon
the difficult question of Civil " responsibility." The
term responsibility is a purely legal one and means
liability to punishment, so that criminal responsibility
means liability to punishment for crime, whilst civil
responsibility refers to liability for torts and contracts.
The legal test of criminal liability is, according to
English Law, the knowledge of right and wrong, but
this is not the test of insanity and a person must be
proved to be insane before such a test can be resorted
to in order to determine whether he is liable to punish-
ment. Such is the law in this country at present,
though not in some foreign systems of law. This has
led medical men to affirm that the legal test of right
and wrong is based upon an erroneous psychology,
viz., on the paramount influence of the reason rather
than the emotions and feelings and the will upon

At present the only issue in regard to Criminal
responsibility is, from the lawyer's standpoint, the
knowledge of right and wrong at the time the act was
committed, a view that many medical men assume
to be an unjustifiable subservience to antiquated legal
metaphysics, whilst there is no common factor whereon
decisions may rest in regard to the capacity for
contract of persons who are of unsound mind.



Dr. Cook In his text-book covers new ground for
he discusses logically and historically the parallel
question of Civil responsibility, and in this work he
deals with conditions which have been described as
resting upon " a very unsatisfactory footing." He
refers to the conflicting views of the medical and legal
professions upon the question of responsibility and
he bases his investigations not only upon the principles
of the Common Law and of Equity but also upon the
decisions of reported cases.

In the work which Dr. Cook has contributed he
traces the evolution of responsibility from remote
times. He has read widely and he writes accurately,
giving chapter and verse for the opinions of others,
and he arranges his matter methodically. His treatise
was accepted by the University of London for the
LL.D degree and is a valuable contribution to forensic
medicine. In view of the proposal by the Ministry
of Health that insane persons should not be certified
during the stage of early symptoms, this work will be
of great value to those who have to undertake their
care and control in the incipient stages of the disease,
as well as after the stage of certification. It will also
prove helpful as well as interesting and informing to
all medical men on the staffs of mental hospitals, as
also to the advanced reader in psychiatry and to those
graduates who are studying for the newly established
Diploma in Psychological Medicine.



35 Hen. VIII. c. 20 12

2 & 3 Ed. VI. c. 8 12

51 Geo. III. c. 37 (Marriage of Lunatics Act, 181 1) 104, 115

9 Geo. IV. c. 14, s. 6 (Lord Tenterden's Act) . . .42

30 & 31 Vict. c. 6 (Metropolitan Poor Act, 1867) . . 170

Act IX of 1872 (Indian Contract Act, 1872) . . .89

36 & 37 Vict, c. 66 (Judicature Act, 1873) . . .92

37 & 38 Vict. c. 62 (Infants' Relief Act, 1874) . . 87
46 & 47 Vict. c. 38 (Criminal Lunatics Act, 1884) . . 168
53 & 54 Vict. c. 5 (Lunacy Act, 1890) . 94, 99, 100 et seq.
53 & 54 Vict. c. 39 (Partnership Act, 1890) . . .98
56 & 57 Vict. c. 71 (Sale of Goods Act, 1893) . 89, 102

3 & 4 Geo. 5, c. 28 (Mental Deficiency Act, 191 3) 3, 167 et seq.
9 & 10 Geo. 5, c. 21 (Ministry of Health Act, 1919) 167 et seq.



Abrath v. North Eastern Railway Co.,

Allen V. Flood, 35
Amicable Society t. Bolland, 96
Anon (2 K. & J. 441), too
Arthur v. Bokenham, 135
Ashby V. White, 32
A-G V. Parnther, 14, 152

Baker, v. Cartwright 116

Banks v. Goodfellow, 128, 129, 134,

137, 139, 141, 145-7) 153
Ball V. Mannim, 64
Barry v. Cross key, 42
Barwick v. English Joint Stock Bank,

Baxter v. Earl of Portsmouth, 74,

Bayley v. Merrel, 44
BeaJl V. Smith, 98
Beavan v. M'Donnell, 154
Benson v. Benson, 152
Beverley's Case, 12, 71-3, 91
Billinghurst v. Vickers, 135
Birkin v. Wing, 91
Blachford v. Christian, 64
Blair, re a Lunatic, 153
Blundell V. Catterall, 32
Blyth V. Birmingham Water Works

Co., 45
Bootle V. Blundell, 136, 155, 156
Borrowdaile v. Hunter, 97
Boughton V. Knight, 131, 155
Boyse v. Rossborough, 131
Brennan v. Donaghy, 24, 26, 27, 30,

Brigham v. Faycrweather, 69
Bristow V. Eastman, 54, 55
Bromage v. Prosser, 35
Brounckcr v. Brouncker, 135
Browne v. Joddrell, 76-8
Browning v. Reane, 105, 107
Burnard v. Haggis, 54, 55

Cannon v. Cannon, 106
Capital & Counties Bank v. Henty, 34
Cartwright v. Cartwright, 135, 143,
154, 155

Clement t. Rhodes, 158

Chandelor v. Lopus, 43

Citizens' Life Assurance Co. r.

Brown, 53,^ 54
Cole V. Robbins, 80
Cole V. Turner, 20
Combe's Case, 142
Cooke V. Midland G. W. R. of Ireland,

415, 47. S^j.S^
Cowern v. Nield, 55
Cowper V. Harnier, 94
Cox V. English Scottish & Australian

Bank, 39
Cross V. Andrews, 25, 71
Curtis V. Curtis, 1 19

Daily Telegraph Newspaper Co. r.

McLaughHn, 88, 89
Dane v. Viscountess Kirkwall, "jS, jj,


Da vies v. Mann, 51

Dean of St. Asaph's Case, 28

Den V. Vancleve, 149

Derry v. Peek, 41, 43, 45

Dew V. Clark and Clark, 132, 143, 145

Dibbins v. Dibbins, 99

Dickinson v. Bliseet, 134

Drew V. Nunn, 80, 94, 102

Dublin, Wicklow & Wexford Railway
Co. v.Slattery, 51

Dufaur v. Professional Life Assur-
ance Co., 97

Durham v. Durham, 105, 106

Durling v. Loveland, 135

Dyce, re. v. Sombre, 157

Dyce, Sombre v. Prinsep, 14

Edgington r. Fitzmauricc, 42, 43
EMiot V. Gurr, 104
Elliot V. Ince, 54, 88, 95
Emmens v. Pottle, 19, 23, 37
Entick V. Carrington, 32
Evans, re., 153

Farmer r. Hunt, 33
Faulder v. Silk, 159
Ferguson v. Borrett, 154
Fletcher y. Rylands, 40



Foster v. Wheeler, 62 Liddle v. Easton's Trustees, 116

Frank v. Mainwaring, 92 Light v. Light, 98

Frost V. Beavan, 92 Lindenau v. Desborough, 96

Lovatt V. Tribe, 157

Gathercole v. ^liall, 34 Lynch v. Nurdin, 52
Gibson, in re., 81

Gore V. Gibson, 79 M'Adam v. Walker, 156

Grant v. Thompson, 73 iM'Naughten's Case, 160

Grecnslade v. Dare, 156 Manby v. Scott, loi. 102

Greenwood v. Greenwood, 143 Mai^inin d. Ball v. Ball, 152

Grill V. General Iron Screw Collier ^Mansfield's Case, 92

Co., 44 Martin v. Johnston, 157

Matthews v. Baxter, 79

Hall V. Hall, 118 Maund v. Monmouthshire Canal Co.,
Hall V. Warren, 91, 93, 135, 159 53

Hanbury v. Hanbury, 19, 30, 118, ^IcDonald v. Snelling, 48

120, 121 Milne v. Bartlett, 99

Hancock v. Peaty, 104-7, ''5 Mitchell v. Kingham, 73

Harford v. Morris, 104, 115 Mohori Bibee v. Dharmodas Chose, 89

Harold v. Watney, 52 Molton v. Camroux, 72-6, 78, 79, 82,
Harris v. Berrall, 151 85, 87, 95

Harris v. Ingledew, 152 Molyneux v. Natal Land ifc Coloni-
Harrison v. Rowan, 149 sation Co., 69, 88, 89

Harrod v. Harrod, 105 Montague v. Benedict, 102

Harvey, R. v., 46, 159 Mordaunt v. ]^Ioncrieftc, 107, 119

Harwood v. Baker, 151 Mordaunt v. Mordaunt. 21

Haycraft v. Creasy, 43 Mountain v. Bennet, 136
Hay ward v. Hay ward, 116, iiS

Heaven v. Pender, 43 Neill v. Morky, 92

Holmes v. Mather, 27, 48 Nesbitt, re. an .Ml-gcd Lunatic, 15S

Holyland, Ex parte, 14 Nichols v. r^Iarsland, 41
Horn V. Anglo-Australian & Universal

Life Assurance Co., 96 Owen v. Davies, 93

Howard v. Earl of Digby, 78 Owbion, in the Goods of, 134

Hunter v. Hunter, 106 Oxford, R. v.. 156

Imperial Loan Co. v. Stone, 64, 75. Pangnni, re., 94

76, 79, 80, 82-^, S7-90, 116 Parmiter v. Coupland, 34

Pasley v. Freeman, 42

Jenkins v. Morris, 64, 147, 14H, 152, Pearce v. Chamberlain, 99

154 Pcgge V. Skynner, 93

J. in re. a Person of Unsound Miad, Peek v. Gurncy, 42

103 Polhill V. Walter, 41

Johnson v. Johnson, 121 Portsmouth v. Porlsmouth, 105, 107
Jones V. Lloyd, 99

Jones V. Noy, 98 Radford v. Radford, 117
Jones V. White, 159 Radlcy v. L. it N. W. Railway Co.. 51

Read v. Leggard, ic2
Kinleside v. Harrison, 136 Rhodes, Rhodes v. Rhodes, re., 65, 8c,

Kirby v. Carr, 99 81, ico

Kirk, V. Gregory, 33 Ricli. in the Goods of, 134

Knight V. Young, 156 Richardson v. Du Bois, loi

Roberts, Ex parte, 92
Latham v. R. Johnson & Nephew, Rodd v. Lewis, 158

Ltd., 52, 56 Roe V. Nix, 159

Le Lievre v. Gould, 45 Rowlands v. Evans. 98

Lewis v. Clay, 84 Ryder v. W'ombwell, 103



Sadler v. Lee, 98

Scott V. Shepherd, 47

Seager, In re., 55

Seaton v. Benedict, 102

Selby V. Jackson, 91

Sergeson v. Sealey, 159

Sivewright v. Sivewriglit, 148

Skelton v. L. & N. W. Railwaj' Co., 51

Sloan V. Mitchell, 150

Smee v. Smee, 147

Smith V. Chadwick, 43

Smith V. Tebbitt, 141, 142, 144, 147

Snook V. Watts, 159

Sprigge V. Sprigge, 151, 152

Stanley v. Powell, 23, 28, 30, 47, 48

Stedman v. Hart, 103

Stevens v. Vancleve, 150

Stewart v. Wyoming Ranchc Co., 42

Stroud V. Marshall, 71

Thompson v. Leach, 72, yi, 87, 88
Towart v. Sellers, 153
Turner v. Meyers, 85, 105, 107
Turner, Ex parte, 93

Ullee, re. The Nawab Nazim of
Bengal's Infants, 104

Van Alst V. Hunter, 151

Vandcrbergh v. Truax, 33

Walden, re. Ex paric Bradbury, 158

Walker, in re, 90, 134

Walter, v. Selfe 39

Waring v. Waring, 141, 142, 144, 145,

147, 152
Waters v. Taylor, 98
Weaver, in re., 81, loi
Weaver v. Ward, 21-3, 25, 28, 30
West Ham Union v. Pearson, 103
Wheeler v. Alderson, 135
White V. Driver, 155
White v. White, 119
Whitfield v. S. E. Railway Co., 53
Williams v. Hays, 25, 58
Williams v. Wcntworsh, 78, 81
Winchester, Marquis of, 142
Windham, re., 156
Wood's Etsate, re. ; Davidson v.

Wood, 102
Wright v. Doe d. Tatham, 156
Wright v. Proud, 74

Yarborough v. Bank of England, 53
Yarrow v. Yarrow, 119
Yates v. Brown, 72, 80
Yonge V. Toynbee, 95




Foreword by Sir John Macdonell
Preface by Sir Robert Armstrong-Jones
Table of Statutes Cited ....
Index of Cases Cited. ....

Introduction ......


I Definition and Classification
II Mental Deficiency in Relation to Tort
HI Mental Deficiency and the Law of Contract
Part I Generally ....

II Lucid Intervals

III Supervening Insanity and Contracts

IV Lunacy and the Contract of Agency

V Insanity and the Contract of Insurance 96

VI Insanity and the Contract of Partner-
ship .....

VII Lunatics and Necessaries .

IV Mental Deficiency and Marriage

V Supervening Insanity and Divorce

VI Testamentary Capacity in Mental Deficiency

VII Evidence of Insanity. ....

Appendix I Summary of Chief Powers and Duties of
Lunacy and Mental Deficiency Authorities in
England .......

Appendix II Suggestions for the Reform of Lunacy
and Mental Deficiency Administration

Index ........
















For historical reasons, the law relating to the torts
of lunatics has been dealt with in this treatise before
that relating to the contracts of lunatics, inasmuch as
the Common Law principles of tort were evolved
earlier than those of contract.

In the development of a legal system its rules come
into existence with little direct reference to theory,
and the various component parts of the system are
framed, by slow degrees, to meet practical require-
ments as they arise. Nevertheless, legal instinct
generally works upon a symmetrical plan : the rules
of the Common Law of England, for example, usually
possess a remarkable consistency so far as they relate
to any one legal topic. Moreover, a stage is always
reached — sooner or later — when legal minds turn
naturally to the task of discovering the broad prin-
ciples which underlie the practical rules of the law,
and of thus evolving from empirical knowledge a
conception of legal principle which is the only guide
for the expansion of existing rules, for their appli-
cation to novel circumstances and to changed con-
ditions and which forms the only logical foundation for
sound legal knowledge.

Notwithstanding this general statement, all at-
tempts to find a common element in every act and
omission which the law denominates tort have failed
owing to the fact that careful examination of each of
the several torts known to the Common Law shows
that no such common element exists. No attempt,



therefore, is made in this treatise to frame a compre-
hensive definition of tort. Furthermore, inasmuch as
the purpose of this chapter is to throw some light
upon the problem of whether a lunatic is answerable
and, if so, to what extent, for torts committed during
his insanity, it has been found necessary, with a view
to adequate treatment of the subject, to examine in
detail each of the several kinds oiiniuria known to the
Common Law.

So far as can be ascertained by reference to the
authorities up to and including the fifteenth century
insanity was not regarded by the Common Law as a
ground for mitigating liability for the payment of
compensation to a person who had been injured in
body or estate by a lunatic. Fitzherbert quotes a case
which was decided in 13 15 from which it would appear
that insanity did not excuse a man even for crimes
committed by him during an attack of lunacv. In the
case referred to the man died after he had recovered
his reason, as the result of wounds self-inflicted while
insane, and his chattels were confiscated as though he
had been in his senses at the time when he committed
the felony. It -is interesting, therefore, to find that
Sir Matthew Hale, writing in 1787, explains that
lunacy did not excuse a man from liability to pay
damages in respect of a civil wrong committed by him
" because such a recompense is not by way of penalty,
but a satisfaction for damage done to the party " (a).

Bacon, writing circ. 161 8, says in his explanation of
Maxim XII (Receditur a placitis juris ^ potius iniurias
et delicta mancant impunita) that " a lunatic can have
neither will nor malice " (b).

It would appear from Bacon's statement, that there
was in the corpus of the Common Law a principle by
which a lunatic was regarded as not being wholly
responsible for torts committed by him during insanity.

(a) Hale, P.C. I. 15, 16.

(b) Bacon, Maxims of the Law XII.


The leading text-books on the law of torts show
that there is a lack of authority as to the liability
of a lunatic for his torts (a). In view of this fact
attention is drawn to a statement of the law of England
upon this matter which was made by Lord Esher
(M.R.) in 1892 when in H anbury v. H anbury (b) the
learned Judge said that he was " prepared to lay
down as the law of England that whenever a person
does an act which is either a criminal or a culpable
act, which act, if done by a person with a perfect
mind, would make him civilly or criminally respon-
sible to the law, that was an act for which he could
be civilly or criminally responsible to the law provided
the disease of the mind of the person doing the act be
not so great as to make him unable to understand the
nature and consequence of the act which he was doing.^^

This is not the only occasion upon which the
Master of the Rolls gave expression to the same
opinion as to the state of the law upon this point,
for in Enimens v. Pottle (1885) in reply to a statement
by counsel that a lunatic may be liable for libel, he
said : " That depends upon whether he is sane
enough to know what he is doing." (c)

It is submitted that the dictum of Lord Esher
(referred to above) constitutes a sound basis upon
which enquiry may usefully be made. With a view,
therefore, to the application, for the purposes of this
treatise, of the principle enunciated by the learned
Master of the Rolls, it is necessary that two matters
be considered, viz : — (i) the essential elemicnts of the
tort committed, and (ii) the state of mind of the
person by whom the tort is said to have been com-

(a) This matter is referred to by a Judicial author (W. Markby, Judge of
Calcutta), who in Elements of Law, p. 131, says : — " How far a person who is
insane would be held responsible, in courts of civil procedure, for his acts or
omissions independently of contract is a matter on which one is surprised to
find our law books nearly silent,"

(b) 3 T-L.R. 559 C.A, (c) 16 Q.B.D., p. 356.


Accordingly, in this chapter have been set out
the elements of the main classes of tort known to
the Common Law with a view to the application of
the tests of insanity to which reference is made in
Chapters I. and VII. dealing with " Definition and
Classification " and with " Evidence of Insanity "


(a) Trespass to the person.

(i) Assault. In the draft Criminal Code of 1879
an assault is defined as the act of intentionally apply-
ing force to the person of another directly or in-
directly, or attempting or threatening by any act or
gesture to apply such force to the person of another,
if the person making the threat causes the other to
believe upon reasonable grounds that the aggressor
has present ability to effect his purpose.

(ii) Battery. According to Holt, C. J., in Cole v.
Turner (a), the least touching of another in anger is
battery ; for, says Blackstone, (b) " the law cannot
draw the line between different degrees of violence,
and therefore totally prohibits the first and lowest
stage of it ; every man's person being sacred, and
no other having a right to meddle with it in any the
slightest manner." Battery includes assault and
although assault strictly means an inchoate battery,
the word assault is in modern usage generally made
to include battery and in this sense the word is used
in the following pages.

Inasmuch as in the law of tort a very considerable
area is covered bv trespass, and in view also of a
recent decision in the Courts of New Zealand, the
chief decisions and opinions in regard to this tort
are set out for consideration. These are as follows : —

(a) 6 Mod. 149. (b) Com. iii. 120.


(i) It is stated by Lord Bacon that " if a man be
killed by misadventure, as by an arrow at butts,
this hath a pardon of course ; but if a man be hurt
or maimed only, an action of trespass lieth, though
it be done against the party's mind and will, and he
shall be punished for the same as deeply as if he had

done it of malice So if an infant within

years of discretion, or a madman, kill another, he
shall not be impeached thereof ; but if they put out
a man's eye or do him like corporal hurt, he shall be
punished in trespass " (a).

(2) Sir Matthew Hale, after enumerating the
incapacities or defects in persons recognised by the
law (among them dementia), states : — " Ordinarily
none of these do excuse those persons that are under
them from civil actions to have a pecuniary recom-
pense for injuries done, as trespass, batteries, wound-
ings : because such a recompense is not by way of
penalty, but a satisfaction for damage done to the
party " (b).

(3) In Weaver v. Ward it is stated that although a
lunatic is not liable for a felony he is yet answerable
in trespass for an injury done to another. Trespass,
it is there stated, " tends only to give damages
according to hurt or loss " (c).

(4) In M or daunt v. Mor daunt, Kelly, C. B., stated: —
" It is true that a judgment of dissolution may
operate as a punishment and so also may any verdict
or judgment in a civil action. . . . Yet in all or any
of these cases insanity is no defence, and no bar
to the suit, and no ground for a stay of proceed-
ings " (d).

These authorities are open to some serious criticism.

(a) Spcdding's Ed. Lord Bacon's Works, Vol. VIL, p. 348.

(b) Pleas of the Crown, Vol. I., p. 15.

(c) (i6i6) Hobart 134.
(d)^ IvR. *P. *D.,p. 141..


In the first place, each of the four English " authori-
ties " is mere obiter dictum. The first two, as state-
ments of sages of the law, command respect, but they
may properly be disregarded if they can be shown
to be contrary to legal principle as authoritatively
laid down by the Courts.

With regard to Lord Bacon's statement, it will be
noticed that he expressly refers first to an " infant
within years of discretion," thus suggesting a possible
qualification of the liability of an infant which is quite
inconsistent with his general statement as to the
nature of trespass, and with the unqualified liability
attributed to a lunatic.

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