358 COLEGATE D. OWINGS' CASE.—1 BLAND.

extraordinary, that any code of laws should recognize a case m
which the existence of a wrong is admitted, and the redress for it
is postponed until after the death of the injured individual. Shelf,
Lun. 53.

There is, however, one highly respectable English lawyer who
has attempted to vindicate this maxim. "Insanity," says he,
" being a quality annexed to the mind of the party who is subject
to it, is a conclusion upon his state of mind to be drawn only from
his own actions. A person therefore may assume this disability,
whereas he cannot feign infancy and duress, the proof not origi-
nating in himself and his actions, but subsisting independently.
That being the case, the law, (which is anxious to provide against
the possibility of committing fraud, at the same time that it pro-
vides for the protection of rights,) removes the temptation to
practise * the former, by prohibiting every man from setting
382 aside his own deliberate acts by stultifying himself, although
it furnishes a means by which his heirs, alter his death, or his
friends, whilst he is living, may avail themselves of this disability.
And it is to be observed, that the law in these cases does not pro-
ceed upon the ground, that the party is bound; for that cannot be
seeing that, by the law of nature, he wants the capacity to assent
to a contract; but because the policy of the law, which rather sub-
mits to particular mischief than a public inconvenience, sets bounds
to the law of nature in point of form and circumstance." 1 Pow.
Cont. 20.

The argument, here derived from considerations of public policy,
results in this; that a greater amount of fraud and injustice would
be likely to ensue by allowing men to stultify themselves, m order
to avoid their contracts, than by refusing them permission to do
so for that purpose. And this position is founded on an assump-
tion of the fact, that it is exceedingly easy to counterfeit madness
without being detected; or that of those who do deceitfully pre-
tend to be insane the far greater number escape detection; and
consequently, but for this maxim the appearance of lunacy would
be very frequently put on, for the purpose of practising imposition
and fraud. The position however, is not sustained by the fact,
it is incumbent upon those who advance this argument to shew,
that instances of feigned madness are common; and also that in
those instances the detection of the deceit has been rare or diffi-
cult. In criminal cases, to defeat the progress of justice, and
under various circumstances to escape from oppression or some im-
minent peril, the artifice of counterfeiting madness has often been
resorted to; but no instances of fraud in civil cases, perpetrated
by means of pretended lunacy, have been adduced, and I know of
none, (i)

(i) The following observations of Messrs. Paris and Fonblanque, in their
excellent work on Medical Jurisprudence, are well worthy of attention: