It was held many years ago in the case of Baker v. Cart-wright that a previous attack of insanity is not a defence to an action for breach of promise of marriage. The effect of a plea of insanity at the time the promise of marriage was made has curiously enough never come before the Courts for consideration till it was raised in the case of Barnard v. Jarrard, tried by Lord Justice A. L. Smith and a jury on February 17th last. The facts are of no legal interest. Lord Justice Smith asked the jury (1) whether the defendant was at the time when the promise was made so unsound of mind to the knowledge of the other party as to be legally incapable of making it (it will be observed that this is an application to promises of marriage of the law as to contracts laid down by Lord Esher in The Imperial Loan Company v. Stone); (2) whether the defendant was of unsound mind at the time fixed for the performance of the promise. The jury answered the first question in the negative and the second in the affirmative (assessing the damages at £500), whereupon the judge entered judgment for the defendant, no doubt on the principle that “the act of God” constitutes an exception to the rule that a person who makes an unqualified promise takes the risk of not being able to perform it. This case offers an interesting illustration of the growing tendency of the law of lunacy to group its criteria of unsoundness of mind, and thus get rid of the old objection to the “different tests of lunacy” which it adopts. In the case of contract and promise the marriage capacity to enter into the engagement and the question of notice to the other party are the material elements. In regard to wills and marriages the question of notice is immaterial—in the former case because the act is the testator's alone, in the latter because marriage is a state as well as a contract, and everything must be presumed in favour of its validity. It need scarcely be said, however, that “notice” is of immense importance in both cases as a matter of evidence and in connection with any allegations of fraud or circumvention. Finally, the responsibility of insane persons for both matrimonial offences and crimes now appears to be governed by the rule in Macnaghten's case (see judgment of Lord Esher in Hanbury v. Hanbury, 1892, “Times” L. E., 560) strictly or liberally applied according to the temperament and views of the judge.
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