and lay them up by the thousand. The contract contains no specifications of the dimensions, shape, angles, openings or arches of the wall, or of the size of the brick. It does not require a mason to know that the value of the materials depends much upon these, and such like conditions, if they are to be paid for by the numerical thousand. Again the brick are to be furnished as well as laid up. Where and how will you count them numerically? Will you count them at the kiln on the ground, or in the wall? And who will lose the breakage in transportation and in handling, and the waste of filling them into the wall? Some fair measurement of the wall would seem to be a more reasonable method. And we cannot say that this method was not a fair one. It slightly increased the estimated number of bricks in the wall, it is true. * * * All this seems reasonable." (in the principal case however the brick were to be ascertained "in the wall.") In Walls v. Bailey, 49 N. Y. 464; S. C., 10 Am. Rep. 407, proof was held competent to show a custom among plasterers to charge for the full surface of walls without deducting for cornices, baseboards, doors or windows. In Symonds v. Lloyd, 6 C. B. (N. S.) 691, where there was a contract to build stone and brick walls, at so much per superficial yard, nine inches thick, evidence was held competent to show a custom to reduce brick-work, for the purpose of measurement, to nine inches, but not to reduce stone-work unless exceeding two feet in thickness. FOREIGN JUDGMENT AGAINST ONE JOINT PARTY. MARYLAND COURT OF APPEALS, JANUARY 19, 1883. HANLEY V. DONOGHUE.* On a judgment recovered in Pennsylvania against two defendants, only one of whom was summoned, there can be no recovery in this State against the defendant who was summoned: the judgment being a nullity as to the party not summoned, is a nullity as to both. A judgment is an entire thing, and cannot be separated into parts. Where suit is brought against one only of two defendants in a judgment, and the declaration sets out a judgment regularly recovered against both, but fails to aver the death of the party not sued, or to account for his not being joined in the action, such failure is fatal on demurrer. THIS was an action of debt on a judgment rendered in the court of Common Pleas of Washington county, Pennsylvania. The declaration contained three counts -the first declaring on a normal and regularly obtained judgment against Charles and John Donoghue; the second declaring on a judgment obtained in " a certain other action," which as there described, is shown to have been in some respects irregular; and the third setting forth also "a certain other "irregular action in much the same way as the second count. The defendant demurred to all the counts. The Circuit Court sustained the demurrer, and gave judgment for the defendant for costs. The plaintiffs appealed. Frederick J. Brown, for appellants. Edward C. Eichelberger and John I. Yellott, for appellee. *To appear in 59 Maryland Reports. ROBINSON, J. It appears from the pleadings in this case that suit was brought in Pennsylvania against Charles and John Donoghue on a joint contract; that Charles was regularly summoned, but no process of any kind was issued against John, nor did he appear in person or by attorney to the suit. Judgment was however subsequently recovered against both defendants, and on this judgment suit is brought in this State against Charles. In support of this action it is contended that the foreign judgment, although void as to John,is valid and binding on Charles, the party who was summoned. At common law a judgment was regarded as an entire thing, and being an entirety it has been held repeatedly that it could not be affirmed as to one or more defendants, and reversed as to others. It must either be affirmed as a whole or reversed as a whole. Cutting v. Williams, 1 Salk. 24; Parker v. Harris, Ld. Rayd. 825; Lloyd v. Pearse, Cro. Jac. 425; 2 Saund. 101; 2 Bac. Abr. 228, marg. Thus in an action of trespass against two or more defendants, if one of them died pending the suit, and judgment was rendered against all, it was decided that the entire judgment must be reversed; and for the reason, that being an entirety it could not be affirmed in part and reversed in part. 2 Bac. Abr., Letter E. 228. But conceding this to be the law where a judgment is affirmed or reversed on appeal or on a writ of error, the argument is that the rule does not apply to a suit brought upon a foreign judgment recovered against two or more defendants, only one of whom was summoned, and which judgment has been permitted to stand unreversed and unchallenged. In such a case the appellant contends the judgment is valid and may be enforced against the party summoned in the original action, though void as to the parties against whom no process was issued. Now in determining this question, we must not lose sight of the distinction between void and voidable judgments. A judgment rendered by a court having jurisdiction over the subject-matter and the person, is unquestionably conclusive and binding on the parties, unless reversed or set aside in some mode or manner prescribed by law. But it is essential to the validity of a judgment in personam, that the court should have jurisdiction over the parties, and if reached without such jurisdiction it is a mere nullity. Such a judgment is not merely erroneous because of some irregularity in the mode of proceeding, or error on the part of the court in the application of the law to the particular case, and for which the party aggrieved must seek a remedy by appeal or writ of error, but being a judgment rendered without jurisdiction, it is absolutely void, and may be assailed at all times, and in all proceedings by which it is sought to be enforced. If then a judgment could not at common law be affirmed in part and reversed in part, because of its entirety, for the same reason if a suit is brought in this State on a foreign judgment which is admitted to be void as to some of the defendants, such a judgment must be held to be void as to all. The reason of the law is that the judgment is an entire thing, and cannot be separated into parts. If execution is issued on such a judgment, it must be issued against all the defendants. The question now before us was fully considered in Hall v. Williams, 6 Pick. 232, where a suit was brought in Massachusetts on a judgment recovered in Georgia against two defendants, and it appeared from the record that one of the defendants had never been summoned, and had never appeared in person, or by attorney, to the suit brought against him in Georgia. And it was held, Parker, C. J., delivering the opinion of the court, that the judgment being entire, if it was a nullity with respect to one it was a nullity also as to the other defendant. In the still later case of Wright v. Andrews, decided in 1881, 130 Mass. 150, the question was again argued before the court, and the decision in 6 Pick. was approved, Gray, C. J., saying that if the "court had no jurisdiction of one defendant, its judgment being entire and unqualified, is in the absence of any evidence of the law of Maine upon the subject, void against both." These decisions have been followed by the courts of Maine, New Hampshire, and in other States. 45 Me. 183; 11 N. H. 290; 1 Abbott U. S. C. 302. In Motteux v. St. Aubin, 2 W. Black. 1133; Ashlin v. Langton, 4 Moore & S. 719; Gerard v. Basse, 1 Dall. 119; Silver v. Reynolds, 2 Harr. (N. J.), 275. Courts have permitted judgments, on motion, some of them in the exercise of a quasi-equitable jurisdiction, to be set aside as to one defendant and to stand as to others. And in some States it has been decided that a judgment may be valid as to one defendant and void as to others. Douglass' Lessee v. Massit, 16 Ohio, 271. The weight of authority is, we think, decidedly the other way, and in accord with the law as laid down in Hall v. Williams, 6 Pick. 232. Looking at the question from an equitable standpoint purely, there is some force in the appellants' contention, that a judgment may and ought to be held valid as to parties summoned, and who had an opportunity to make their defenses even though it may be void as to others against whom no process was issued. But if it be well settled, and such seems to be the law, that a judgment which is void as to one of the defendants is void also as to the other, the plaintiff in taking such a judgment has no one to blame but himself. In bringing suit against two parties on a joint contract, it was his duty to have directed proces to be issued against both, and if he failed to do so, and subsequently took a judgment against one of the defendants who never had been summoned, he has no right to complain because the law will not enforce the payment of such a judgment. For these reasons the demurrer to the second and third counts was properly sustained. The first count, sets forth a judgment regularly recovered against both defendants; the suit is brought however against one only, and without any suggestion of the death of the other. Both were jointly and severally liable on the judgments, and both ought to have been sued, or some reason alleged why the other was not joined in the action. Merrick v. Bank of Metropolis, 8 Gill, 64; Kent v. Holliday, 17 Md. 393; State v. Magraw, 12 G. & J. 265. This was decided in Prather v. Manro, 11 G. & J. 261, where upon a judgment against two defendants, a scire facias was issued against the terre-tenants of one of the defendants, only without suggesting the death of the other, and upon demurrer this defect was held fatal. Finding no error in the rulings below, the judgment will be affirmed. claimed $25,000 damages, and procured an order of arrest under which defendant was held in $10,000 bail. Daniel Peixotto and Horatio M. Sadler were sureties, upon the undertaking on which the order of arrest was granted. The sureties made the usual affidavit of justification. When the case was called for trial plaintiff did not appear, the complaint was dismissed with an allowance of $750 to the defendant. On the examination of the sureties it appeared that they were entirely irresponsible. Thereupon defendaut made application for the punishment of the sureties for contempt. Abram Kling, for the motion. TRUAX, J. The examination of the sureties shows that they were not worth the sum in which they justified, and that they knew they were not worth that sum when they justified; that they became sureties for the purpose of enabling the attorney for the plaintiff to obtain the order of arrest, and that their misconduct in so doing defeated and impaired the rights and remedies of the defendant. The defendant would not have been arrested and held to bail in the sum of $10,000 if Peixotto and Sadler or some one else, had not acted as sureties for the plaintiff. The defendant was entitled to two respon sible sureties upon the undertaking which was given upon obtaining the order sought. He lost this right by the fraudulent acts of this attorney for the plaintiff, and the false swearing of the sureties. No plainer case of an attempt to prevent the course of justice and to impair and defeat the rights and remedies of a party can be shown than the one now presented to this court. Perjury has always been held to be a great contempt of court. Stackhouse v. French, 1 Bing. 365. It is true that the sureties may, and should be indicted for their perjury. But their indictment and conviction will be a punishment for the offense that they have committed against the people of this State, and will not purge the contempt. Their offense against the court will still remain unpunished. That offense the court has power to punish by imposing upon them a fine sufficient to indemnify the defendant for the loss and injury he has sustained through their misconduct, and by imprisoning them for six months, and until the fine is paid. Section 2285. If they should happen to be indicted and convicted for their perjury, the court before whom they are con victed will, in pronouncing its sentence, take into con sideration the previous punishment. Section 2287 of Code of Civ. Pro. It was suggested on the argument that this applica tion could not be granted, because a commitment to prison would be a violation of that part of the Constitution of this State which declares that "the trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever." Art. 1, § 2. This suggestion is untenable. Courts of justice have had the power of punishing contempt by summary proceedings from time immemorial. The process of attachment for contempt must necessarily be as ancient as the laws themselves-for laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. 4 Black. Com. 286. To punish for contempt was part of the common law of England when the Constitution of 1777 was adopted. That Constitution (art 35) declared that the common law of England should be and continue the law of this State. The power to punish for a contempt is a branch of the common law which has been adopted and sanctioned by our State Constitution. Yates v. Lansing, 9 Johns. 416. Therefore this is not one of the cases in which trial by jury "has been heretofore used." Nor is this proceeding within the prohibition of that portion of the Constitution of the United States which provides that "no person shall be deprived of life, liberty, or property without due process of law." This is a due process of law, and was recognized as such when the Constitution of the United States was passed. It is not to be doubted, says Chancellor Kent, that the Constitution and laws of the United States were made in reference to the existence of the common law. In many cases the language of the Constitution and laws would be inexplicable without reference to the common law; and the existence of the common law is not only supposed by the Constitution, but it is appealed for the construction and interpretation of its powers. 1 Kent Com. 336. The actual loss produced by the misconduct of the sureties is the amount of the judgment which the defendant has recovered against the plaintiff, to wit$772.52. The sureties are fined that amount. They will also be imprisoned for six months, and until the above fine is paid. CHILD TRESPASSER MAY NOT RECOVER FOR PERSONAL INJURY. PENNSYLVANIA SUPREME COURT, NOV. 20, 1882. BALTIMORE & OHIO RAILROAD Co. v. SCHWINDling. A boy five or six years of age was standing upon the platform of a railway station, when he was struck and injured by a projection from a passing train. At the time he was simply loitering about the station for his own enjoyment and had no business whatever with the railway company. Held, that the company was not liable for the injury. A CTION for injury from negligence. The opiniou states the fact. The plaintiff had judgment below and defendant took a writ of error. Henry M. Hoyt, Jr., Welty Mc Cullogh, Johns McCleave and George Shiras, Jr., for plaintiff in error. M. Swartzwelder and Frank Thomson, for defendant in error. GREEN, J. At the time the plaintiff received his injury he was standing on the platform of the defendaut, so close to its edge, that according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car. He was not a passenger, he had no business of any kind with the defendant, or any of its agents or employees; in fact he was a boy five or six years of age, amusing himself looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform at the time of the accident. He was simply loitering upon the edge of the platform, with no other purpose or motive than his own personal enjoyment. His elder brother, his principal witness, testified that he told him to come back from where he was standing, but he refused to do so. A passing car moving at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting but a few inches from the side of the car (as alleged by the plaintiff, though denied by the defendant), struck him and pulled him from the platform under the wheels of the car, so that he was run over and injured. In these circumstances was there any right of recovery? We think clearly not. We held in the case of Gillis v. Pennsylvania Railroad Co., 9 P. F. S. 141, that "the platform of a railroad company at its station or stopping-place is in no sense a public highway; there is no dedication to public use as such; it is a structure erected expressly for the ac ** commodation of passengers arriving and departing in the train. Being uninclosed, persons are allowed the privilege of walking over it for other purposes, but they have no right to do so. ** * * Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner." Again on p. 143: "The plaintiff may not have been technically a trespasser; the platform was open; there was a general license to pass over it; but he was where he had no legal right to be; his presence there was in no way connected with the purposes for which the platform was constructed. * As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it;as to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratity his curiosity, or to give vent to his patriotic feelings. The defendant had nothing to do with that." Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held that there could be no recovery, although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers, or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation, and hence there was no right of action. The controlling feature of the inquiry in all such cases is, what was the duty which was violated by the defendant. If there was none, there is no legal liability; this was essentially the distinction on which Railroad v. Hummell, 8 Wr. 375, was decided. On page 379, Strong, J., said: "Yet a jury cannot hold parties to a higher standard of care than the law requires, and they cannot find any thing negligence which is less than a failure to discharge a legal duty, if the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, theh the jury cannot say that a failure to take such precautions, is a failure in duty and negligence." * "Blowing the whistle of the locomotive, or making any other signal, was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown nor a signal made was no evidence of negligence." ** It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child. There is no question of contributory negligence involved in the inquiry or essential to its consideration, If the defendant did not owe the duty of protection against the injury suffered in the particular case, the omission to furnish such protection is not negligence, and there is no liability on that ground. Take the pres ent case as an illustration. The only duty which is or can be claimed as having been violated was a duty to protect the plaintiff, when standing upon the edge of the defendant's platform, from injury from a car step projecting a few inches beyond the side of a slowly passing car. But how can any such duty arise out of such circumstances? The plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precautions against such injury. It is not denied that this would be true if the plaintiff was an adult; how then can it be otherwise than true as to a child? The absence of duty is precisely the same in either case, and the consequent ab sence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children cannot recover unless there is negligence, and there can be no negligence without a breach of duty. In Kay v. Pennsylvania Railroad Co., 15 P. F. S. 276, we said: "If there be no negligence on the part of the company, then the incapacity of the child creates no liability, and its injury is its own misfortune which it must bear." case, we discern no evidence of any breach of duty owing by the defendant to the plaintiff. There was no a pretense of wanton injury, and therefore the first and second points of the defendant should have been affirmed. Judgment reversed. WITNESS WITH IMPAIRED MIND COMPE- SUPREME COURT OF THE UNITED STATES, DISTRICT OF COLUMBIA V. ARMS. In Philadelphia & Reading Railroad Co. v. Spearen, vate convenience, in no way connected with business He was The court said: "The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. neither a passenger, nor on his way to become one, but was there merely for his own amusement, and was using the track for a play-ground. The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him." In Gillespie v. McGowan, 39 Leg. Intel. 313, we held that the owners of uninclosed lots in Philadelphia owed no duty of protection, even to children, against the danger of falling into an open well on the premises, although the field in question was crossed by frequented paths and used as a place of resort by children and adults. In Moore v. Philadelphia & Reading RailRoad Co., 39 Leg. Intel. 290, we held there could be no recovery for the death of a boy ten years of age who was struck by an engine while walking on and along the track, on the end of the cross-ties. We said: "The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult." In the case of Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91, a child four years of age was struck, as it was claimed, by the projecting axle-box of a car, which extended one foot six inches beyond the outside of the rail and three inches over the line of the street curb. He was on the public street-walk, where he had a right to be but he was so close to the car that he was struck, as was supposed, by the projecting axle. We held that there was no sufficient evidence of negligence in these circumstances to submit the cause to a jury. The cases of injuries to persons while crossing the track at permissive crossings are not analogous, and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of ordinary care is incumbent upon the company. But in the present case, the plaintiff was not engaged in he act of crossing the track, or even the platform, when he was injured, and therefore the cases on this subject are not in point. Upon the whole A witness whose mind is feeble so that his statements are N error to the Supreme Court of the District of FIELD, J. This was an action to recover damages for injuries received by the plaintiff's intestate, Du Bose, from a fall caused by a defective sidewalk in the city of Washington. In 1873, the board of public works of the city caused the grade of the carrigeway of Thirteenth street, between F and G streets, to be lowered several feet. The distance between the curbstone of the carriageway and the line of the adjacent buildings was thirty-six feet. At the time the accident to the deceased occurred, this portion of the street-sidewalk it may be termed to designate it from the carriageway, although only a part of it is given up to foot passengers-was, for forty-eight feet north of F street, lowered in its whole width to the same grade as the carriageway. But for some distance beyond that point, only twelve feet of the sidewalk was cut down, thus leaving an abrupt descent of about two feet, at a distance of twelve feet from the curb. At this descent from the ele vated to the lowered part of the sidewalk--there were three steps, but the place was not guarded either at its side or end. Nothing was placed to warn foot passengers of the danger. On the night of February 21, 1877, Du Bose, a contract surgeon of the United States army, while walking down Thirteenth street, towards F street, fell down this descent, and striking upon his knees, received a concussion which injured his spine and produced partial paralysis, resulting in the impairment of his mind and ultimately in his death, which occurred since the trial below. The present action was for the injury thus sustained. He was himself a witness, and it appeared from his testimony that his mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent nor unintelligible, but evinced a full knowledge of the matters in relation to which he was testifying. A physician of the government hos pital for the insane, to which the deceased was taken two years afterward, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statementof facts which transpired before the injury took place, though from the impairment of his memory, he might leave out some important part, that there would be some confusion of ideas in his mind, and that he should not be held responsible for any criminal act. A physician of the freedmen's hospital, in which the deceased was at one time a patient after his injuries, testified to a more deranged condition of his mind, and that he was, when there in June, 1879, insane. He had attempted to commit suicide, and had stuck a fork into his neck several times. Upon this, and other testimony of similar import, and the feebleness exhibited by the deceased on the stand, the counsel for the city requested the court to withdraw his testimony from the jury, on the ground that his mental faculties were so far impaired as to render him incompetent to testify as a witness. This the court refused to do, but instructed the jury that his testimony must be taken with some allowance, considering his condition of mind and his incapacity to remember all the circumstances which might throw some light on his present condition. This refusal and ruling of the court constitute the first error assigned. always found him so; and that it was solely with reference to the delusion about the spirits that he cousidered him a lunatic. The witness himself was called, and testified as follows: "I am fully aware I have a spirit, and twenty thousand of them. They are not all mine. I must inquire. I can where I am. I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics. All are now in my body and around my head. They speak to me incessantly, particularly at night. That spirits are immortal, I am taught by my religion from my childhood, no matter how faith goes, all live after my death, those that belong to me and those that do not." After much more of this kind of talk he added: "They speak to me instantly; they are speaking to me now; they are not separate from me; they are around me speaking to me now; but I can't be a spirit, for I am flesh and blood. They can go in and out through walls and places which I cannot." He also stated his opinion of what it was to take an oath: "When I swear," he said, "I appeal to the Almighty. It is perjury, the breaking of a lawful oath, or taking an unlawful one; he that does it will go to hell for all eternity." He was then sworn, and gave a perfectly collected and rational account of a transaction which he declared that he had witnessed. He was in some doubt as to the day of the week on which it took place, and on cross-examination said: "These creatures insist upon it, it was Tuesday night, and I think it was Monday;" whereupon he was asked: "Is what you have told us what the spirits told you, or what you recollected without the spirits?" And he said: "No, the spirits assist me in speaking of the date, I thought it was Monday and they told me it was Christmas eve, Tuesday; but I was an eye-witness, an occular witness to the fall to the ground." The question was reserved for the opinion of the court whether this witness was competent, and after a very elaborate discussion of the subject, it was held that he was. Chief Justice Campbell said that he entertained no doubt that the rule laid down by Baron Parke, in an unreported case which had been referred to, was correct, that wherever a delusion of an insane character exists in any person who is called as a witness, it is for the judge to determine whether the person so called has a sufficient sense of religion in his mind and a sufficient under The ruling of the court and its instruction to the jury were entirely correct. It is undoubtedly true that a lunatic or insane person may, from the condition of his mind, not be a competent witness. His incompetency on that ground, like incompetency for any other cause, must be passed upon by the court, and to aid its judgment, evidence of his condition is admissible. But lunacy or insanity assumes so many forms, and is so often partial in its extent, being frequently confined to particular subjects, whilst there is full intelligence on others, that the power of the court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evince a high degree of intelligence and wisdom on others. The existence of partial insanity does not unfit individuals so affected for the transaction of business on all subjects, nor from giving a perfectly accurate, and lucid statement of what they have seen or heard. In a case in the Prerogative Court of Canterbury, counsel stated that partial insanity was unknown to the law of England; but the court replied that if by this was meant that the law never deems a person both sane and insane at one and the same time upon one and the same subject, the assertion was a truism; and added: "If by that position, it be meant and intended that the law of England never deems a party both sane and insane at different times upon the same snbject, and both sane and insane at the same time upon different sub-standing of the nature of an oath, and it is for the jury jects, there can scarcely be a position more destitute of legal foundation, or rather there can scarcely be one more adverse to the stream and current of legal authority." Dew v. Clark, 3d Addams Eccl. R. 79, 94. The general rule there is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity. Such was the decision of the court of Criminal Appeal in England, in the case of Regina v. Hill (5th Cox's Criminal Cases), 259. There the prisoner had been convicted of manslaughter; and on the trial a witness had been admitted whose incompetency was urged on the ground of alleged insanity. He was a patient in a lunatic asylum, under the delusion that he had a number of spirits about him which were continually talking to him, but the medical superintendent testified that he was capable of giving an account of any transaction that happened before his eyes; that he had to decide what amount of credit they will give to his testimony. "Various authorities," said the chief justice, "have been referred to, which lay down the law that a person non compos mentis is not an admissible witness; but in what sense is the expression non compos mentis employed? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath and capable of giving very material evidence upon the subject-matter under consideration." And the chief justice added: "The proper test must always be-does the lunatic understand what he is saying; and does he understand the obligation of an oath? The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still if he can stand the test proposed, the jury must determine all the rest." He also observed that in a lunatic asylum the patients are often the only witnesses of outrages upon themselves and others, and there would be impunity for offenses committed in such places if the only persons who can give information are not to be heard. Baron Alderson, Justice Coleridge, Baron Platt, and Justice Talfourd |