was, at the time of the original restraint, a dangerous lunatic, in such a state that it was likely that he might do mischief to any one, the defendant would be justified in putting a restraint upon him, not merely at the moment of the original danger, but until there was reasonable ground to believe that the danger was over, and this would sustain one of the pleas. Or again, if the jury were satisfied that the wife of the plaintiff had called in the defendant to cure her husband under a fit of delirium tremens, and that he came in to cure him, and left him when he believed he had recovered, then the defendant would be justified in what he had done, supposing that in either case he had done nothing that was not necessary or reasonably proper under the circum stances. And again, if the defendant had been called in on behalf of and for the benefit of the plaintiff, and to cure him under a fit of delirium tremens, and that when the plaintiff recovered himself he approved what had been done, that would likewise afford a defence, supposing (as before) that nothing more than what was the proper treatment had been adopted. With regard to the evidence, it certainly was utterly contradictory. The jury had seen the plaintiff himself in the box, and could judge for themselves of his manner and demeanour. The case on the part of the plaintiff was most extraordinary, that a medical man should insist on acting for a man in such a way, against the wish of his wife and family. Supposing the defendant had been originally called in to do what was proper, he would be justified in taking care of the plaintiff until he had recovered; and it was not because while he was under the care of some one he was quiet, that therefore the defendant would be justified in leaving him, for he might break out again when that care VOL. III. A A F.F. 1862. SCOTT v. WAKEM. 1862. SCOTT v. WAKEM. and control were withdrawn, unless he had quite recovered. But the question was not whether the defendant sincerely believed he was right, but whether he was so. And if, in point of fact, he was wrong, then he would not be justified merely on account of the sincerity of his belief. According to his account, however, he had abundant warrant for what he had done, as he had declared that he had been sent for, and told that the plaintiff had just threatened to shoot his wife, and that he found him in a most excited state, suffering from delirium tremens, and in a most dangerous state; according to his account he was not responsible for the man's remaining there all night; and his evidence was confirmed by Streets. On the other hand, the plaintiff and his wife denied that there was anything which justified any restraint upon him. The other witnesses for the plaintiff stated that there was no authority from his wife for what had been done. If the plaintiff's case was true, then the defendant had acted of his own will, from his own head, without any authority or approval. Whereas, on the defendant's case, he had acted all along with express authority. Now, in such a case it was very desirable, as an eminent Judge once observed, to see what facts were beyond dispute. And here it was very clear that the wife had sent the servant in great haste for help, and that the defendant somehow heard of it. One side said all this was merely to have a pair of pistols unloaded. The other side said it was to have the plaintiff put under restraint. Which was the most reasonable supposition? That was for the jury. If there were no imminent occasion for alarm, there would have been no more reason for sending to have the pistols unloaded then than at any other time. And if it were the natural and reasonable view to suppose that there was some imminent occasion for alarm, then it would seem probable that the defendant's case was the true one. And, if so, then he was entitled to the verdict on the two principal The jury consulted together for some time, and found a (a) Any man may justify an assault, when it may restrain the fury of a lunatic and prevent mischief; Brookshaw v. Hopkins, Lofft, 243. A medical man is not warranted merely on statements made by the relations of a person supposed to be insane, in sending men to take him into custody and confine him, unless he is satisfied from those statements that such a step is necessary to prevent some immediate injury from being done by the individual, either to himself or other persons; and, if access cannot be had for the purpose of examination, application should be made to the Lord Chancellor, that the party may be taken up under his authority; Anderdon v. Burrows, 4 C. & P. 210.-Tenterden. To afford a summary legal remedy, the stat. 8 & 9 Vict. c. 100, was passed, and an order under that act, s. 45, is not void because the particulars specified in the form annexed to the act are not stated, where a bona fide excuse is given for the omission. A certificate under sect. 46, stating as the reason for believing the person ordered to be confined to be insane, that "she labours under delusions of various kinds; that she is dirty and indecent in the extreme," was held sufficient. In a similar certificate, the words "following fact," given in the form annexed to the act, were struck out, and it was stated that the opinion was formed " from conversations which I have had this day with her." This also was held sufficient. The forms given in the act should, however, as far as possible, be followed; but semble, that the only consequence of the order or certificates being void would be to render the keeper of a licensed house, who had received a lunatic under them, liable to indictment under sect. 48, and that the common law right to restrain a lunatic is not affected by the statute; Re Shuttleworth, 2 New Mag. Cases, 34; 2 New Sess. Cases, 470; 9 Q. B. Rep. 651. In the sittings after M. T., a remarkable case of Hall v. Semple was tried in Q. B., in which the action was against a medical man for signing a certificate under the statute without reasonable cause, or without due and proper inquiries; vide post. 1862. SCOTT v. WAKEM. 1862. Hants Spring Agents who entire charge of a vessel, held, liable for Winchester, coram Byles, J. HOLMES v. CLARK AND ANOTHER. DECLARATION, that the plaintiff, the owner of a yacht, had taken the had employed the defendants, as his agents, to take entire charge of it. Breach, that by their negligence it ran injury done to against another vessel, and caused damage, for which it was libelled in the Admiralty Court and condemned, whereby the plaintiff became liable to certain damages and costs, &c. another vessel. Pleas denying the contract and breach. M. Smith and Barstow for the defendants. The defendants, who were agents at Southampton, where the yacht lay, had written to the plaintiff inclosing" their terms for taking charge" of the yacht: "Commission, 2 per cent. on sale, and one penny per ton per week, as the charge for taking the entire charge of the vessel." This was the contract declared on, but a conversation between one of the defendants and the plaintiff's attorney was also proved, in which the former said that they would undertake the duty of taking down the masts and spars, and housing them, and sending a man to look after the moorings, &c. The plaintiff's instructions were to sell as soon as possible; but before a sale could be effected, and before the masts were taken down, &c., a storm came on, in which the yacht broke from its moorings, and ran against another vessel, doing it damage. The yacht was libelled in the Admiralty Court and condemned, on the ground that it had not been properly secured. BYLES, J., left it to the jury, in substance, whether the defendants had been guilty of neglect in not taking care of the yacht. Verdict for the plaintiff, damages 5007. Court of Queen's Bench, Westminster, coram Crompton, J. HALL v. SEMPLE. 1862. Middlesex Sittings. Michaelmas Term. ACTION against a physician, under whose certificate the A medical plaintiff had been confined as a lunatic. The first count complained that the defendant caused him to be assaulted and forcibly seized and conveyed to a lunatic asylum. Second count charged that the defendant, being a physician, [falsely and maliciously] (a) and without reasonable or probable cause, and with intent to cause the plaintiff to be imprisoned and put under bodily restraint, and to be kept and detained in custody as a person of unsound mind, did, as a physician, sign a certain certificate, according to the form prescribed by the Lunacy Acts, whereby it was [falsely and maliciously] certified, among other things, that the defendant had separately examined the plaintiff, and that he was of unsound mind [and also so falsely, &c., caused one Guy to sign a certificate to the same effect], whereas in truth and in fact the plaintiff was not a person of unsound mind, as the defendant well knew. (a) The words in brackets were struck out; vide p. 350. (b) 8 & 9 Vict. c. 100; 16 & 17 Vict. c. 96. It may be well to state the two or three sections of the statute which chiefly relate to it :- not a man, who has merely signed certificate Lunacy Acts under the and has done nothing more towards caus ing the con finement of the trespass his part to if merely con charge). Nor, certificate, and case, is he liable for caus ing the other to sign such certificate. But if he signs such a certificate without taking due care and The defendant pleaded under the Lunacy Acts (b) and stating the particulars required in the act, nor without the medical certificates, according to the form annexed, of two physicians, surgeons or apothecaries, who shall not be in partnership, and each of whom shall, separately from the other, have personally examined the person to whom it relates, not more than seven clear days previously to the reception of such person .... And any physician, surgeon or apothecary who shall is not satisfied, knowingly sign any such medical he is bound to "Sect. 45. That no person, whether being or represented to be a lunatic, or only a boarder or lodger ... shall be received into or detained in any licensed house . . . without an order under the hand of some person according to the form making due inquiries, he is liable for the consequences which ensue. Ard if on his own personal examination he make due in quiries. Nor is he the less liable for the want of such due care and inquiries because he has acted bonâ fide. VOL. III. BB F.F. |