COLEGATE D. OWINGS' CASE. 3gl

he can; taking care, however, that he does not allege his own for-
mer insanity as a ground for vacating any contract by which he
may have been defrauded of it. Hence as regards his property,
the recovery of his reason, instead of being a blessing, may be his
greatest misfortune; for he may, notwithstanding he is in fact the
owner of a large estate, be by the operation of this maxim, fixed
in penury during the remainder of his days. The granting of a
commission of lunacy it is said, is a matter not of right but of
sound discretion under all circumstances.(v) But if this maxim
prevails it should be held to be a matter of right, since it may be
often indispensably necessary as the only means by which a lunatic
can obtain justice.

The heirs and personal representatives of the lunatic are, how-
ever, not restrained by this maxim. They may obtain the redress
which has been denied to him. The heir may recover the impe-
rishable realty; but of whom is reimbursement to be obtained for
the years of waste and devastation that may have been committed
upon it during the life of the lunatic ? The only remedy, against the
wrongdoer, in its best form, is a mere personal claim for an
account of the rents and profits; but he may be a beggar. The
administrator of the lunatic may reclaim his personal property
itself, if to be found; or if not, he may sue for its value, if the
wrongdoer can be found; and recover from him its full value, if
he should be worth as much. He who delays to pay what is due,
pays less than is due; but suspended and indefinitely deferred jus-
tice is a tantalizing pernicious mockery. It appears to be most
extraordinary, that any code of laws should recognise a case in
which the existence of a wrong is admitted, and the redress for it
Is postponed until after the death of the injured individual.(w)
* 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 prae-

(v) 1 Coll. Idiots, 67; Rebecca Owings' Case, ante, 290.—(w) Shelf. Lun. 58.