m'naghten case.pdf

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x CLARK & FINNELLY,19s M'NAGHTEN'S CASE [I 8431carried. In the present case his noble and learned friend (the[I981Lord Chancellor)and himself were clearly of opinion that they ought not to allowapersontosay frominspection of the signaturesto two or three documeI~ts-two only, the deed and will,being genuine instrumen~, dmitted to be in the handwriting of Edmund Fowler,-from the inspection of those two documents, that he could prove the handwriting ofthe party. No doubt such evidence had been often received, because it was not ob-jected to. A witness was properly allowed to speak to a person's handwriting frominspection of a number of docunrents with which he had grown familiar from frequentuse of them; and it was on that ground that a person's solicitor and steward wereadmitted to prove his handwriting.Xr. Wigram referred to a case of a trial atbar, Beuett v. 3 r a ~ a ~4 Term. Rep.497), inwhich an inspector of franks at the Posboffiee was admitted to say,as amaarof skill and judgment, whether the name signed to awi l l was genuineor in a feignedhand:-Lord Brougham :-Yes, truly; or that isma%r of professional skirl (see videade, p. 154). But that is no reason for admitting a witness& speak to the realhandwriting of aperson from only having seen a fewof his signaturestoother instru-menk produced to him, and that for the purpose of proving its identity.Mr. Bridges, who said he had been the family solicitor of the Claimant for morethan 30 years, and, prior to that, had been clerk to his uncle, who was the familysolicitor for 40 years, was then examined. Having, in answer tothe questions put tohim, said that he had acquired a knowledge of the character of the handwriting ofEdmund Fowler from his acquaint-[199]-ance with tf . great number of title-deeds,account books, and other instrumenb purporting to have been written or signed byhim, which he had occasiontoexamine from time to time in the course of business forhis client, who now holds the Fowler estates,-he was admitted to prove the hand-writingd the Mildmay pedigree; and he said he believed and felt no doubt whateverthatthewhole of itwas in the handwriting of Edmund Fowler, with the exception ofa few words near the bottom, which he pointed out.The pedigree and some queries to it were received asbeing written by EdmundFowler, with those exceptions mentioned by the witness; ut,TheLords08the Committ~ esired ittobeunderstood that they were not receivedas proof t,hat all the statements contained in them were true;one of their Lordshipsobserving that pedigrees were sometimes made to deceive, being for the most parttrue, except a link or two, the most material of all.Other points of evidence that occurred in the prosecution of this claim, will bereported when the case comes to be finally decided.

_ -zoo3 DANIEL M NAGRTEN' S CASE.I

Xay 26, J une 19, 1843.S.C. 8ScottN.R. 595; 1Q and K . 130; 4 St. Tr. N.S,847. The rules laid down in this cwe have ben accepted in the main asm-

authoritative statement of the law (cf. Reg. v. Townley, 1863, 3 F. and F. 839;Reg. v. Southey, 1865, 4 F. and F. 864; Reg. v. Leigh, 1866, 4 F. and F. 919).But they have been adversely criticised both by legal and medical text writerg(see2 Steph.Hist Crim. Law, 124-186;Mayne Ind. Crim. Law (ed. l896), 368),have been rejected by many of the American States (see e.g. Parsons v. State,1887, 81Ala. 577), and frequently receive a liberal interpretation in England.On point as to questions to the Judges, see note to do amd ~ ~Bar& Case, 2 Cl. and F. 191.1

[Mews' Dig. i. 349; iv. 1112.,

M zk7. de~- E v~~nee- ~nsa~~~.The House of Lords has a right to require the Judges to answer abstract questionsof existing law (see London and ~~m i n s t e rank Cme,m t e [2 G . and F.],p. 191[and note thereto].

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M'NAGHTEN'S CASE [1843] X CLARK Bc FINNELLY, zol~otwi th~andi i ~gparty aceused did an act, which was in itself criminal, underthe influence of insane delusion, with a view of redressingor revengingsomesupposed grievance or injury, or of producing some public benefit, he ienevertheIess punishable i f he knew at the time that hewas acting contraryto law.That i f the accused was conscious that the act was one which he ought not to do;and if the act was at the same time contrary to law, he is punishable. In allcases of this kind the jurors ought to be told that every man is presumed tobe sane, and to possess a sufficient degree of reason to be responsible for hiscrimes, until the contrary be proved to their satisfaction: and that toes~bl ish defence an the ground of insanity, it must be clearly proved that;at the time of commiting the act the party accused was labouring under sucha defect of reason, from disease of the mind, as not t a know the nature andquality of the act he was doing, or as not to know that what he was doingwas wrong.That a party labouring under a partial delusion must beconsidered in the same

situation, as t o responsibility, as if the facta, in respect to which the delusionexists, werered.That where an accused person is supposed to be insane, a medical man, who hasbeen present in Court and heard the evidence, may be asked, as a matter ofscience, whether the faoh stated by the witnessm, supposing them to be true,show a stateof mind incapableOf distinguishing between right and wrong.The prisoner had bee& indicted for that he, onthe 20th day of J anuary 1843, atthe parish of Saint Martin in the Fields, in the county of Middlesex, and within thejurisdiction of the Central Crimina1 Court, in and upon one Edward Drummond,feloniously, wilfully, andof his malice aforethought, did make an assault; and that

the said Daniel M'Naghten, B certain pistol of the value of 20s., loaded and[%Illharged with gunpowder anda leaden bullet (which pistol heinhis right handhad and held), to, against and upon the said Edward ~rummond, eloniously, wil-fulIy, and of his malice aforethought, did shmt and discharge; and that the saidDaniel M'Naghten, with the leaden bullet aforwaid, out of the piatof aforesaid, byforce of the gunpowder, etc., the said Edward ~rummond,n and upon the back ofhim the said Edward Dru~mond,eloniously, etc. did strike, penetrate and wound,giving to the said Edward Drummond, in and upon the back of the said EdwardDrurnmond, one mortal wound, etc., of which mortal wound the said E. Druamondlanguished until the 25th of April and then died;and that by the means aforesaid,he the prisoner did kill and murder the said Edward Drumniond. The prisonerpleaded Not guilty.Evidence having been given of the fact of theshooting of Mr .Drummond, and ofhis death in consequence thereof, witnesses were called on the part of the prisoner,t oprovethathe was not, at the timeof eemmitting the act, in a sound statecrf mind.The medical. evidence was in substance this: That persons of otherwise sound mind,mightbe affected by morbid delusiom:that the prisoner was in that condition: tha%a person so labouring under a morbid delusion, might have a moral perception ofright and wrong, but that in the case of the prisoner it wa8 a delusion which carriedhim away beyond the power of his own control, and left him no such perception;andthat he was not capable of exercising any control over acts which had eonnexion withhis delusion: that it was of the nature of the disease with which the prisoner wasaffwted, to go on gradually until i t had reached a climax, when it burst forth withirresistible [202] intensity: that a man might go on for years quietly, though at thesame time under its influence, but would all at once break out into the most extrava-gant and violent paroxysms.Some of the witnesses who gave this evidence, had previously examined theprisoner :others had never seen him till he appeared in Court, and they formed theiropinions on hearing the evidence given by the other witnesses.Lord Chief Justice Tindal (in his charge):--The question tsr be determined i s ,whether at the time the ack in question was Gommitt~,he prisoner had or had notthe use of hisunderstanding, soas toknow that he was doingawrong or wicked act.If the jurors should beof opinion that the prisoner was not sensible, at the time he719

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X CLARK BC F INNEUY, a03 MNAGHTENS CASE [18433committed it, that he was violating the laws both of God and man, then he wouldbeentitled toaverdict in his favour:but i f , on the contrary, they were of opinion thatwhen he committed the act he was in a sound state of mind, then their verdict must beagainst him.Verdict, Not guilty, on the ground of insanity.

This verdict, and the question of the nature and evtent of the unsoundness of mindnhich would excuse the commission of a felony of this sort, having been made thesubject of debata in the House of Lords (the 6th and 13th March 1843; eeHansardsDebates, vol. 67, pp. 288, 714), it was determined t o take the opinion of the Judgeson the law governing such cases. Accordingly, on the 26th of May, all the Judgesattended their Lordships, but no questions were then put.On the 19th of June, the Judges again attended the House of Lords;when (noargument having been E2031 had) the following questions of law were propounded tothem:-1st. What isthe law respecting alleged crimes commit~ed y persons afflicted withinsane delusion, in respectof one or more particular subjects or persolis: as, for in-stance, where at the timeof the commission of the alleged crime, the wcused knewhe was acting contrary to law, but did the act c~mpla~nedf with a view, under theinfluence of insane delusion, of redressingo~revenging some supposed grievanceorinjury, or of producing some supposed public bnefitl2d. What are the proper questions to be submitted to the jury, when a personalleged to beafflicted with insane delusion respecting oneormore particular subjectsor persons, is charged with the commission of acrime (murder, for example), and in-sanity isset up=a defence13d. In what brms ought the queation to be left to the jury, as to the prisonersstate of mind at the time when the act was committedt4th. If a person under an insane delusion as to existing facts, c6mmits an offencein consequence thereof, is he thereby excused?5th. Can a medical man conversant with, the disease of insanity, who never sawthe prisoner previously to the trial, but who was present during the whole trial andthe examination of all the witnesses, be asked his; opinion. as to the state of theprisoners mind at the time of the commission of the aBeged Grime, or his; opinionwhether the prisoner was conscious at the timeof doing the act, that he was actingcontrary to law, or whether he was labouring under any and what deIusion at $hetime?[204] Mr. Justice Maule:1 feel great difficulty in answering the qumtione put byyour Lordships on this occasion :-First, because they do not appear to arise out ofand are not put with reference to a particular case, or for a particular purpose,which might explain or limit the generality of their terns, so that full answers tothem ought. to be applicable to every possiblestateof facts, not inconsistent with thoseassumed in the questions: this difficulty isthe greater, from the practical experienceboth of the bar and the Court being confined toquwtions arising out of thefactsofparticular cases :-Secondly, because I have heard no argument at your Lordshipsbar or elsewhere, on thesubjectof these questions; the want of which I feel the more,the greater are the number and extent of questions which might be raised in argu-ment :-and Tfiirdly, froma fear of which1cannot divest myseff, that ibsthese ques-tions relatetomatters of criminal law of great importance and frequent occurrence,the answers to thein by the Judges may embarrass the administration of justice, whenthey are cited in criminal trials. For these reasons I should have been glad if mylearned brethren would have joined me in praying your Lordshipsto excuseus fromanswering these questions; ut as I do not think they ought to, induce! me to ask thatindulgenceormyself individually, I sha11 proceed to give such answers as I can,after the very short time which I have had to consider the questions, and under thedifficultiesI have mentioned; fearing that my amwers may be as littlesatisfactoryto others as they areto myself.The first qutastion, as I understand it;, is, in effect, What is the law respecting thealleged crime, when at thetime of the cQmmissionof it, the accused knew he wasacting contrary to thel aw but did the act [206] with a view, under the influenceofinsane delusion, of redressing or revenging some supposed grievance or injury, or ofproducing some supposed public bnefit?-If I were to understand thip question ac-720


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wNAwTMS CASE cl8431 x C L a K 8t FxNNELLy,2mcording to the strict meaningof itsterms, it would require, in order to answer it, asolution of all questions of law which could ariseon thecircumstancesstated in thequestion, either by explicitly stating and answering such questions, or by statingsome principlee or rules which would suffice for their solution. I am quite unabIetodoso, and, indeed, doubt whether it bepossible to bedone; and therefore request tobe permitted to answer the question only so far as it comprehends the question,whether a person, circumstanced as stated in the question, is, for that reason only,to befound not guilty of a crime reapecting which the question of his guilt has beenduly raised in acriminal proceeding? and I amof opinion that he is not. There isno law, that I am awareof, that makes persons in the stab deecribed in the questionnot responsible for their criminal acts. To render a person irresponsible for crimeon accountof unsoundnem of mind, the unsoundness should, accordingto the law aaithas long been understood and held, besuch as rendered him incapableof knowingright from wrong. The terms used in the question cannot be said (with referenceonly to the usage4f ~angua~)o ba equivalent to a description of this kind anddegree of unsoundness of mind. If the state described in the questionbeone whichinvolves or isnecessari1y.connectedtedwith such an unsoundness, this is not amat,teroflaw but of physiolo~, nd not of that obvious and familiar kind as to be inferred~i thoutroof.Second, the questions necessarily to besubmitted to the jury, are those questionsof fact which are[a061 raised on the record. In 8 criminal trial, the question com-manly is, whether the accused be guilty or not guilty :but, in order to assist the juryin comingtoa right conclusion on this necessary and ultimate question, it is usual andproper to submit such subordinateor intermediate questions, asthe course whioh thetrial has taken may have made it convenient to direct their attention to. Whatthw0 questions are, and the mannerof submitting them, isamatter of discretion forthe Judge: a discretiontobe guided by aconsideration of all the circrumstanees at-tending the inquiry. I n performing this duty, it ie sometimes necessary or con-veaientto informthe jury astothe law; nd if, on atrial suchasiss u g ~ t ~n thequestion, he should have occasion to state vhat kind and degree of insanity wouldamounttoa defence, itshouldb stated conformablytowhat I have mentioned in myanswertothefirstquestion,asbing, in my opinion, the law oathis subjeeet.Third, there amnoterms which the Judgeisby law required touse. They shouldnot be inconsistent with the law as above stated, but should be such as, in the discretion of the Judge, are proper to assist the jury in comingto a right conclusion asto the guiltof the accused.

Fourth, the answer which I have given to thefirstquestion, is applicable to this.Fifth, whether aquestion canb asked, depends, not merely on the questions offact raised on the record, but on the course of the cause at the time i t isproposed toask i t; and thestat0of an inquiry as to theguilt of a person charged with a erime,and defended on the ground of insanity, maybesuch, that suobaquestion as eitherof those suggmted, i s proper to Lws asked and answered, though the witness has[ ZO q never seen the person before the trial, and though he has merely been presentand bard the witnesses: these oircumstanc~,of his never having smn the personbefore, andof hie having merely been present at the trial, notbeingnecessarily suffi-cient, as it seems to me, to exclude the l awf ul n~f a question which is otherwiselawful; though1will not say thsk an inquiry might not be in such a state, as thatt h ecircumstances should have suoh an2effect.Supposing there is nothing eke in the state of the trial to make the questionssuggested proper t abeasked and answered, except that the witness bad been presentand heard the evidence; it is to beconsidered whether that is enoughto sustain thequestion. In, principle i t ia open to thisobjeatiosn, that as the opinion,of the witnessis founded on those conclusions of fact which he forms from the evidence, and as itdo@ not appear what those conclusions are, it may Lws that the evidenos he gives i sonsuch an asrtumption of facts, as rnakea it irrelevant totheinquiry. Rut such ques-tions havebeenvery frequently asked, and the evidence to which they are directedhae been given, and has never, thatI am awareof,been succ~sful ly bjected to. Evi-dence, most clearly open to this objection, and on the admission of which the eventof amost important trial probably turned, was received in the case of Tlze &me% v,~ ~ ~ g ~ t e ~ ,ried at the Central Criminal Court in March last, before the Lord Chief721


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x CLARK BC F I ~N E ~Y ,08 ~ ~ ~ A G ~ ~ ~ ~ sASE [1843]Justice, Mr. Justice ~i l l iams, nd Mr. Justice Coleridge, in which counsel of thr,highest eminence were engaged on both sides; and I think the course and practice ofreceiving such evidence, confirmed by the very high authority of these Judgecr, whonot only received it, but left it, as I understand, to the jury, without my remarkderogating from its [2@3]weight, ought tobeheld towarrant itsreception, notwith-standing the objeotion in principle to which it may be open. In cases even wherethe course of practice in criminal law has been unfavourable to parties accused, andentirely contrary to the most obvious principles of justice and humanity, as well asthose of law, it has beenheld that such practice constituted the law, and could not bealtered without the authority of Parliament.Lord Chief Justice Tindal :-My Lords, Her Majestys Judges (with the exceptionof Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the~uest~onsroposed to them by your Lordships House, think it right, in the fir&place, to statethat they have forborne enhring into any particular discussion uponthese questions, from the extreme and almost insuperable diflicultyof applying thoseanswerstocasesin.which the factsarenot brought judic~alIy efore them. The factaof each particular case mustof necessity present themselves,with endless variety, andwith every shade of difference in each case; and as it is their dutyto declare the lawupon each particular case, on fa& proved before them, and after hearing argumentof counsel thereon, they deem it at once impra~icable,and at thesame time danger-ous to the administration of justice, i f itwere practicable, to attempttomake minuteapplications of the principles involved in the answers given.by them to your Lord-ships questions.They have therefore confined their answers to the statement of that which theyhold to be the law upon the abstract questions proposed by your Lordships; and asthey deem it unnecessary, in this pecuIiar cbse, todeliver their opiaions seriatim, andas all concur in [mgJ the same opinion, they desire me to express such their unani-mousopinion toyour Lordships. What isthe law resp&-ing alleged crimes commit by persons aHictsd with insane delusion in respectofoneor more particula~ ubject, or persons: as, for instance, where at the time of thecamxnifision of the alleged crime the accused knew he was acting contrary to law, butdid the a& complained of with a view, under the influenceof insane delusion,of r8-dressing or revenging some supposed grievance or injury, or of prduoing some sup-posed public benefit?In answer to which question, assuming that your Lordships inquiries are con-fined to those persons who labour under such partial delusions only, and are not inother respects insane, we areof opinion that, not~ithstandingheptarty accused didtheact coniplained of with a view, under the influence of insane delusion, of redress-ing or revenging somesupposed grievancaor injury, or of producing some publicbenefit, he is nevertheIess punishab~e ccording to the nature of the crime c o mm~t ~if heknew at the timeof committing such crime that hewasacting contrary to law;by which expressionweunderstand your Lordships to mean the lawof the land.What are the proper qum-tions to besub~ittedo the jury, where a person alleged to be afflicted with inpanedelusion respecting oneor more particular subjmts or persons, is charged with the~mmi ~s~o nf s, prime (murder, far example), and insanity is setup as a defence?)And, thirdly, n what terms ought the question to be left to the jury as to theprisoners stateof mind at the time when [210] the act was committed? And as thesetwo quehstions appear to us to be more conveniently answered together, we have tosubmit our opinion to be. that the jurors ought tobetold in all casw that every mani s to be presumed to besane, and to possema suBcient degree of reason toberespon-sible for his crimes,until the contrary be provedtotheir satisfaction; nd that to estab-lish a defenceon the ground of insanity, it must beclearly proved that, at the timeof the ~mmi t t ~n ~f the act, the party accused was labouring under such a defectofreason, from disease of the mind, as not to know the nature and quality of the acthe was doing; or, if he did know it, that he did nok know he was doing what wwwrong. The mode of putting the latter part of the question to the jury on theseoccasions has geaerally been, whether the accused at the timeof doing the act knewthedifference between right and wrong: which mode, though rarely, if ever, leading to722

Thefirstquestion proposed by your Lordships isthis:

Your Lordships are pleasedteinquire of us, secondly,


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M'NAGHTEN'S CASE [18431any mistake with the jury, is not, asweconceive,soaccurate when put generally andin the abetract, as when put with reference to thepartyk knowl~gef right andwrong in respect to &hevery act with which he is charged. If thequestion were tobe put asto the knowledge of theawused solely and exclusively with referenceto thelawof the land, it might tend toconfound the jury, by inducing themtobelieve thatan actual knowledge of the law of the land was essential in order to lead to a convic-tion;whereas the law is administered upon the principle that every one must be takenconclusivelytoknow it, without proof that he does know it. I f the accused was con-scious that the act was one which he ought not to do, and if that act was at the sametime contrary to the law of the land, he is punishable; nd the usual course therefore[211] has been to leave the questiontothe jury, whethertheparty accused had a suffi-cient degree of reason to know that hewas doing an act that was wrong: and thiscoursewe think iscorrect, accompanied with such observations and explanations asthe circumstances of each particular case may require.The fourth question which your Lordships have proposed to us iB this:---"If aperson under an insane delusion as to existing facts, commits an offence in come-quence thereof, ishethereby excused2" To which question the answer must of coursedepend on the nature of the delusion: but, making the same assumption as we didbefore, namely; that he labours under such partial delusion only, and is not in otbrrespects insane, we think he mustbeconsidered in the same situation as to responsi-bility as i f the facts with respect to which the delusion exists were real. For example,if under the influence of his delusion he supposes another man to be in the act ofattempting to take away his life, and he kills that man, as he supposes, in self-defence,he would beexempt from punishment. If his delusion was that the deceased had in-flicted a serious injury to his character and fortune, and he killed him in revengefor such supposed injury, he would be liable to punishment.Tho question lastly proposed by your Lordships is:--" Can a medical maa con-versantwiththe diseaseo f insanity, who never saw the prisoner previcmslyMthe trial,but who ww present during thewhole trial and the examination of all the witnesses,beaskedhisopinion as to the state of the prisoner's mind at the time of the commis-sionof the alleged crime, or his opinion whether the prisoner was conscious at thetime of doingtheact that he was acting contraryto law, or whether he was labouringunder any and [ 214 what delusion at the time?" Xn answer thereto, we statetoyour Lordships, that we think the medical man, under the circumstances supposed,cannot in strictness be asked his opinion in the terms above stated, because each ofthwe questions involves the determination of the truth of the facts deposod to, whichit is for the jury to decide, and the questions @re ot mere questions upon a matter ofscience, in which case such evidence is admissible. But where the facts are admittedor not disputed, and the question b~omesubstantially one of science only, it may beconvenient to allow the question to be put in that general form, though the samecannot be insisted on as a matter of right.Lord Brougham :-My Lords, the opinions of the learned Judges, and the veryable manner inwhich they havebeen, presented to the Houso, deserve our best thanks.One of the learned Judges has expressed his regret that these questions were notargued by counsel. Generally speaking, it ismost important that in questions putfor the consideration of the Judges, they should have all that assistance which isaffordedto them by an argument by coumel :but at the same time, there canbenodoubt of your Lordships' right to put, in this way, abstract questions of law to theJudges, the answer to which might be necessary to your Lordships in your legislativecapacity. There is a precedent for this course, in the memorable instance of Mr.Fox's Bill on the law of libel; where, before passing the Bill, this House called onthe Judges to give their opinions on what was the law as it then existed.Lord Campbell :-My Lords, f cannot avoid expr~~2131- i ngy sati sfa~~on,that the noble and learned Lord on thewoolsack carried intoeffeot his desire to putthese questionsto the Judges. Itwas most fit that the opinions of the Judges shouldbe asked an &we matters, the settlingof which is not. a mere maser of spwulation;for your Lordships may be called on, in your legislative capacity, to changethe law;andbefore doingso, it i s proper that you shouldbe satisfied beyond doubt what thelaw reaIIy i s . It is d~i rableo haTe such qu~ti on~rgued at the bar, but such acourse i s not always practicab~e. Your ~ r d s ~ p save been reminded of one prew

x CLARK BE FINKEUY, 2f3

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x c w FINNELLY, 214 WLT HY v. MANGLES[I 8431dent for thisproceeding, but them isastill more recent instance; the Judges havingbeen summoned inthe case of the Canada Rwmes, toexpress their opinions on whatwas then the law on that subjeot. Tbeanswers given by the Judges aremost highlysatisfactory, andwill beof thegreatestuse in the administration of justice,Lord Cot~nham-My Lords, I fully concur with.the opinion now expregsed, asto the obligations we oweto the Judges. It is true that they cannot be required tosay what wouldbethe construction of a Bill, not in existenceasa law at the momentat which the question is put to them;but they may be called on to assist your Lord-ships, in declaring their opinions upon abstract questions of existing law.Lord Wynford :-My Lords, 1never doubted that your Lordships possess the powerto call on the Judges to give their opinions upon questionsof existing law, proposedto them asthese questions havebeen. I myself recollect,thatwhen I had the honourto hold the officeof Lord Chief Justice of the Court of [214] Common Pleas, I com-municated to the House the opinions of the Judges on questions of this sort, framedwith referencet o the usury taws. Upon the opinion of the J udgh thus delivered tothe House by me, aBillwek9 founded, and afterwards passed into a law.The Lord Chancellor :-My Lords, I entirely concur in the opinion given bymynoble and learned friends, asto our right to have the opinionsof theJudgepion abstract qu~tionsf existing law;and I agree that we owe our thanks to the Judges,for the attention and learning with which they have answered the quwtione now plitto them.12151CHRISTIAN DOTTIN WITHY, Widow,-AppeZlaint ; REDERICK MANGLES

and Others,-Respolzdelzts [March 30, 31, April 6, J une 30, 18431.[Mews Dig. i. 354; xii. 980; xv. 830. S.C. 8 Jur. 69; and in Court below, 4 Beav.358; 10 L. J. Ch. 391. Distinguished in Zalton v. Foster, 1868, L.R. 3 Ch.507. Commented on in White v. ~ p ~ ~ e ~ t ,869, L.R. 4 Ch. 303; Rawis v.f Y e~~o~,877, 46 L. J . Ch. 270; Keay v. Bouto0172>883, 25 Ch. D. 217. See alsoBaker v. Gihon, 1849, 12 Beav. 101; Gas v. Brandreth, 1860, 28 Beav, 283.1~ a r r ~ ~ ~ettkme7Lt--Constructio~-~~~f Kin---Parmts amcl ~ ~ i ~By the settlement made on the marriagebf E.M., the ultimate Emitation of asumof 3210,000,which her father thereby oovenanted to pay, was to such personor persons as at the time of her death should be her next of kin. E. M . diedleaving her husband and a child of the marriage, and her own father andmother, surviving,--Held (armi ng a decree of the Master of the Rolls), that the father, mother, andchild of E. M. were equally her next of kin, and were entitled, under thelimitation, to the &10,000 in joint tenancy.Byamarriage settlement, the wifes portion was limited toher for life, remainderto her husband for life, remainder to the children of the marriage to bevesbd at 21 or marriage, and in case none should attain that ageor marry,then in trust for the brothers and sisters of the wife or their issue, as sheshould appoint; nd in default of appointment, in trust for the next of kin.-Held, that the child of the marriage was not excluded from taking under theultimate limitation.Upon appeal against a decree dismissing the bill, the Respondent may, insupporting the decree, raise points in his cme and argument, that were notraised in the Court below.By an indenture of settlement dated the 23d of August 1825, and made in con-templation of the marriage of Henry Withy and Emily Manglw, itwas, among otherthings,,provided, that within six months after the death of Robert Withy (the father

of the intended husband), his executors should pay to the trustees of the satdementthe principal sum of g.5000; nd that within six months after the death of JamegMangles (the father of the intended wife), his executors should pay to the tru&eesof the settlement the principal sumof &lO,OOO:And the trustee9 were to invest thetwo sums and pay the interest of the$5000 to [216] Henry Withy for life, with re

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