Chapter XVIII: Introduction (6)

SOMNOLENCY. This is a state of body which the sturdy impostor has in several instances assumed; he pretends to be in a state incapable of any muscular motion; he is constantly in bed, retaining that posture in which his limbs are placed, or may happen to fall; his great aim is to appear unconscious of the external world; the interesting case of this kind related by _Dr. Hennen_[562] must be considered as the master-piece of imposture. A person of the name of _Drake_, in the Royal African Corps, assumed an appearance of total insensibility, under which he resisted every kind of treatment; he resisted the shower bath as well as shocks of electricity; but on a proposal being uttered in his presence to apply the actual cautery, his pulse rose; and on preparations being made to remove him to Bethlem hospital, an amendment soon manifested itself.

SYNCOPE. It seems probable that certain persons have possessed a controlling power over the action of the heart; _Dr. Cleghorn_, of Glasgow, mentions in his lectures the case of a person whom he knew, who could feign death, and had so completely the power of suspending, or at least, moderating the action of the heart, that its pulsation could not be felt; this man, it appears, some years afterwards, died suddenly. The story of _Colonel Townshend_ is well known, who, in the presence of _Dr. Cheyne_ and some other physicians, put on all the appearance of death, and was resuscitated of his own accord; in this instance it is said that neither pulse nor respiration could be perceived for more than half an hour; he, however, actually died on the same evening.

_Dr. Hennen_ relates a most interesting case of violent palpitation of the heart, which was produced by the man’s own efforts. _Dr. Hennen_ found that he could at any time render the affection very imperfect by throwing the patient’s head well back, so as to destroy that voluntary combination of muscular action, which he believes to have produced the palpitation; “we must suppose,” says he, “that this person had the power of throwing the muscles which narrow the chest into sudden and strong action, at the moment when the apex of the heart made its stroke upwards;” after a serious admonition, _Dr. Hennen_ sent the man back to his duty, and as he afterwards remained without any murmur or complaint, we must consider his obedience as a tacit acknowledgment of his guilt. Some persons have pretended that they have no pulsation at the wrist, and they occasion its cessation by pressure on the artery, or by taking a full inspiration, and continuing to retain the breath as long as possible.[563]

EPILEPSY. There is perhaps no disease that has been more frequently simulated with success; its characters, and mode of attack, offer great facilities for the impostor; it does not require the unremitting caution which other maladies exact for successful imitation, nor is it necessary, as _Dr. Smith_ observes, to assume it but at convenient times; it being perfectly consistent with the nature of the disorder to be quite well in the intervals, which may be longer or shorter at the impostor’s pleasure; during the feigned attack, the blood is generally sucked from the gums, and the mouth made to froth by chewing soap;[564] there is, however, one symptom of the disease which cannot be imitated—the incontractility of the pupil of the eye, on exposure to light, which in a real fit of epilepsy is always dilated and immoveable; nor is the patient affected by rubbing stimulants on the nose. During these feigned convulsions impostors have often suffered the most flagrant liberties to be taken with their persons, without betraying the least consciousness of what was going on, such as having pins and needles run into different parts of their bodies; this fact admits, in some degree, of physiological explanation; compression on the muscles, by acting on their nervous filaments, or by some unknown influence on the distribution of nervous energy, renders them less sensible in proportion as they become contracted; wounds are thus often inflicted in the field of battle which are scarcely felt during a desperate conflict, on account of the high muscular energy of the part which is in force at the time; indeed it may be satisfactorily shewn that convulsions, or inordinate muscular contractions, are in themselves instinctive efforts to diminish pain.

HYSTERIA. On account of the variety and mutability of the symptoms which characterise this affection, but little skill is required for its simulation. _Dr. Cullen_ is said[565] to have been deceived by a man who, pretending to be affected with this disease, was retained in the Edinburgh Infirmary as long as suited his convenience, and afterwards triumphantly acknowledged the deceit; affusion of cold water, low diet, and blisters, will generally furnish the means of detection.

The SHAKING PALSY is a frequent plea on the part of an idle beggar; and is always suspicious, especially where the person appears to be in other respects, in an ordinary state of vigour; this ingenious order of mendicants, however, says _Dr. Gordon Smith_,[566] understands the art of mimicking wretchedness too well not to have the details of their appearance in some degree of keeping.

Before we quit the subject of spasmodic diseases, it is essential to remark that, owing to circumstances and peculiarities of temperament, these diseases assume, on certain occasions, and in particular individuals, an extravagance of character which might create a suspicion of their being feigned. _Lord Monboddo_, in his “Ancient Metaphysics,” mentions an extraordinary case of what he calls “jumping ague,” in which the person affected would jump on chairs and tables, and run with great velocity during sleep. _Sir John Sinclair_, in his Statistical account of Scotland, relates also many well authenticated histories of the same disease, and in some parts of Forfarshire it is said to be extremely common; and there is reason to believe that it may be propagated by a species of sympathy; numerous are the instances[567] on record, where the accidental sight of a patient, suffering an epileptic attack, has immediately occasioned a similar attack on the spectator; so that epilepsy has been supposed to be sometimes communicable from one person to another, nearly in the same manner as has been observed of the action of yawning; and agreeably to a notion alluded to by the poet—

“Dum spectant oculi læsos, lædunter et ipsi.”

Similar spasmodic diseases have been occasioned by religious enthusiasm, and propagated by sympathy, have become in a very wonderful manner epidemic;[568] in such cases, although we must consider those in whom the affection originated as designing impostors, we are bound to acquit the general mass of sufferers of any blame, except that which may attach to excessive credulity.[569]

FEVER. The state of the system after a night’s debauch may deceive a person unaccustomed to such inspections. Emetics have also been taken with the same view, and the face has been exposed to the fumes of sulphur. _Foderé_ likewise states that paleness has been induced by smoking _Cummin seeds_;[570] and we have heard that a paroxysm of fever may be excited and kept up by the introduction of a clove of garlic into the rectum. _Dr. Hennen_ says that he has seen many attempts to simulate fever by whitening the tongue with chalk, &c. and he has often met with old soldiers profoundly versed in the history of a paroxysm of intermittent, and very skilful in imitating the rigors. The detection, however, of such artifices cannot be difficult.

DROPSY. This is more generally feigned by pregnant women, and for the means to be employed for the detection of the fraud, we must refer the reader to our section on utero-gestation. _Sauvages_ relates the case of a mendicant who gave to his child the appearance of hydrocephalus by piercing the integuments of the head, and gradually introducing air; and _Ambrose Paré_ mentions a similar practice for the purpose of counterfeiting hydrocele.

JAUNDICE. If any attempt should be made to colour the skin yellow, the whiteness of the tunica conjunctiva, as well as the appearance of the urine and fœces of the patient, will always detect the imposition.

HÆMOPTHYSIS. This disease has been frequently feigned by sucking blood from the cheeks, gums, &c. but the professional inspector can never be deceived by such artifices; the appearance of the sputa, the state of pulse, &c. will always indicate the truth; besides which detection must be insured by a careful examination of the mouth and fauces.

VOMITING OF BLOOD. _Sauvages_ relates the case of a young woman who, to avoid the confinement of a convent, swallowed a quantity of bullock’s blood, and vomited it up in the presence of a physician sent to examine her. Where such a trick is suspected, we have only to secure the patient from the necessary supplies, and the fraud is at once detected.

VOMITING OF URINE. Where this is asserted we may safely pronounce the patient an impostor, for the event is physiologically impossible.

BLOODY URINE. An appearance of this nature is often produced in India by eating the Indian fig (_Cactus Opuntia_), or the fruit of the prickly pear, which imparts to the urine a blood-red colour. It has been also simulated by clandestinely pouring real blood, or colouring matter, into the night utensils. There is an old story of a boy who imposed on many by pretending to pass black urine; but being confined, he was detected in an attempt to secrete an ink-bottle, which pointed out the mode of his imposture.

INCONTINENCE OF URINE. The simulation of this affection may be detected by giving the patient a full dose of opium at night, without his knowledge, and introducing the catheter during sleep, or, by taking him by surprise during the day, and introducing the same instrument; when, if he be an impostor, it will be found that the urine has not drained off, _guttatim_, as it was secreted, but that the bladder possesses the power of retention. If the bed clothes are not found wet after a full dose of opium, during the operation of which the patient has been suddenly awoke, we may also be satisfied that there is no incontinence. _Foderé_ says that if the penis is secured by a ligature, it will swell considerably in the real incontinence, in consequence of the urine running into the urethra; but that no such effect will happen if the disease be feigned.

GRAVEL AND STONE. All impositions upon this subject may be detected by chemical analysis; in general, it will be sufficient to saw the pretended calculus into two parts, when the absence of the characteristic structure will establish the fraud; it will frequently be found that they are small pebbles, or coarse siliceous sand; _Mr. Wilson_[571] has related two instances of this kind in which an attempt was made to practise on his credulity; “many years ago,” says he, “when I resided in the house of _Mr. Cruikshank_, a person brought his son to that gentleman for surgical advice, asserting that the boy had long been cruelly afflicted with stone; in proof of which he produced several pieces of hard slaty substances, which he stated he had assisted the child in removing from the urethra; upon my expressing an opinion that these were not urinary concretions, he pretended to be angry, and indignantly left the house, declaring that he would seek for a surgeon to perform the operation for the removal of the stone, whose humanity would not let him doubt the assertion of a father, who, though in poverty, would gladly sacrifice his own existence to save that of his son: a few days after this he brought back the boy with a large piece of slate sticking in the urethra, which had torn the inner membrane, and from the swelling it had produced, was with much difficulty removed; wishing to detect the imposture, I persuaded him to leave the boy in _Mr. Cruikshank’s_ house, under the pretence that the operation of lithotomy should be performed, if necessary; and it was only after the forms of binding the boy and bandaging his eyes were gone through, that he could be prevailed upon to confess his father had taught him to introduce these substances, which he had procured from coals, for the purpose of exciting commisseration for his pretended sufferings, and obtaining money from the charitably disposed; and perhaps, in this instance, to have extorted money from the surgeon to conceal his ignorance, had he seriously attempted to perform any operation.”

ALVINE CONCRETIONS. It sometimes occurs that bodies of a very anomalous kind are passed from the intestines; but the medical practitioner by a careful examination of the substance, and a minute inquiry into the nature of all the ingesta, will frequently succeed in tracing their origin. _Dr. Marcet_, in his “Essay on Calculous Disorders,” relates some interesting instances of this kind, which we shall notice in this place, in order to put the medical man on his guard when called upon to deliver his opinion upon such occasions. The first case is that of some concretions put into _Dr. Marcet’s_ hands by _Sir Astley Cooper_, and which had been discharged by a female patient, under circumstances which made it questionable whether they had proceeded from the rectum, or from the urethra; they were, however, discovered to be pieces of undigested cheese formed into balls by the action of the intestines, or portions of caseous matter actually formed in the intestines from milk taken as nourishment by the person, and coagulated by the gastric juices into those undigestible masses. Another singular species of intestinal calculus was found by _Dr. Marcet_ and _Dr. Wollaston_ to be oat-seeds, derived from the oaten cake which the patient had eaten. _Dr. Marcet_ also describes a concretion which, by the assistance of _Dr. Wollaston_, he discovered to be those small woody knots which are often found in certain pears, and which the person had previously eaten. The last case which he relates is not less curious; a philosophical gentleman of delicate health, and disordered system, voided a number of small red globular bodies, each of which had in its centre two black opaque spots; they were supposed to be peculiar animals connected with his disorder, but _Dr. Wollaston_ soon satisfied himself that they were nothing but the spawn of lobsters, an extremely indigestible substance, of which the patient acknowledged to have eaten about the time he passed these bodies. The author has deemed it necessary to introduce this subject under the present article; for, strange as it may appear, it not unfrequently happens, as _Dr. Marcet_ has stated, that persons apparently respectable, produce bodies, as having been voided, which are wholly supposititious.

ABSTINENCE FROM FOOD. Long fasting, or the power of refraining altogether from food for years, has been frequently the subject of imposition. The case of _Anne Moore_, of Tetbury, must be in the recollection of all our readers[572]; and in the _Philosophical Transactions_ two cases are recorded, in one of which a man is said to have taken nothing but water for eighteen years, with now and then during a certain period of the year, a draught of clarified honey; but the case which has excited public interest in the greatest degree, is that of _Elizabeth Canning_, (_for whose trial, see_ 10 _Harg. St. Tri._ 205, _and_ 19 _Howel St. Tri._ 262) who, among other circumstances, pretended that she had been confined in a loft from Tuesday the 2d of January at four o’clock, A. M. until Monday the 29th, at four P. M. and that during this period she had had no sustenance, except about twenty-four pieces of bread to the amount of a quartern loaf, a penny mince-pye, and between three or four quarts of water; and yet that on the 28th day she made her escape by jumping out of the window, and walked twelve miles in six hours without taking food.[573] This story, incredible as it may appear, was actually believed by many persons, and popular clamour rose to a most indecent height; bills of indictment were preferred, and libels circulated without example either as to number or virulence; and _Mary Squires_, an unfortunate old gipsey, was condemned to death for the robbery charged to have been committed previous to this alleged, wanton imprisonment of the impostress _Canning_. One of the most interesting points in the evidence of these trials, (for there were several on different grounds,) was derived from the inspection of the linen of the impostress by an ingenious midwife, (19 _How. St. Tri._ 428) who observed that in twenty-eight days a menstrual period would probably have occurred, and yet there was no vestige of such an event to be traced on the linen; thus may physiological circumstances often elucidate points apparently remote from medical cognizance.

DEAFNESS AND DUMBNESS. Where the former of these maladies is alone simulated, the inspector will be able, with a little address, to detect the imposture; a sudden noise will frequently betray the patient, and an instance of this kind is related by _Ambrose Paré_; we may also contrive to communicate in his presence some circumstance in which he is greatly interested, and notice the effect of the intelligence upon his countenance, or upon his pulse. Where dumbness is only feigned, we should remember that the powers of articulation never leave a person without some cause, which medical inquiry must discover. It has been a question whether the absence of the tongue should be considered a sufficient reason for muteness; although we cannot dispute the validity of such a proof, it is necessary to know that cases are recorded[574] where persons did very well without that organ; but we are inclined to believe with Dr. Smith, that the muscles belonging to the tongue were, in such cases, not deficient. But these observations apply to instances of imposture, where deafness or dumbness have been singly simulated; suppose a medical practitioner is called upon to examine a patient who declares himself to labour under the misfortune of congenital deafness, and consequent dumbness, what plan of investigation is he to pursue upon such an occasion? It must be admitted that where this simulation is well performed, it becomes extremely difficult to detect it; but it requires so much art and perseverance that few persons will be found capable of the deception: _M. Sichard_ succeeded in the detection of a most accomplished impostor, by requiring him to answer a number of queries in writing; when, the Abbé soon found that he spelt several words in compliance with their sound, instead of according to their established orthography; by substituting for instance the _c_ for the _q_, which at once enabled the Abbé to declare that it was impossible that he should have been deaf and dumb from his birth, because he wrote as we _hear_, and not, as in the case of the real deaf and dumb, as we _see_.

BLINDNESS. In cases of alledged amaurosis, the practitioner has generally relied upon the contractility of the pupil, as a test of vision; but _Richter_ asserts that nothing positive can be drawn from the mobility or immobility of the iris, as sometimes the one and sometimes the other occurs; if however the pupil does not contract, we must think that the practitioner is authorised in concluding as to the existence of the disease. By unexpectedly reflecting the rays of the sun, by means of a mirror, upon the eye of the patient, we shall generally be able to discover any deception that may have been practised. Where short-sightedness is pleaded as a disqualification, the truth may be easily ascertained by inspection. The French adopted a very simple and ingenious mode of distinguishing the feigned myopes who endeavoured to escape the conscription laws; they placed spectacles of various powers upon the persons to be examined, and suddenly bringing before their eyes a printed paper, the subject of which was wholly unknown to them, the facility with which the person read pointed out with tolerable accuracy the state of his vision. A myope, for instance, and none but a myope, could read fluently a paper, brought close to his eyes, with concave glasses, and _vice versâ_.

OPHTHALMIA. This affection has been sometimes induced by the application of corrosive sublimate; if, says _Dr. Hennen_,[575] in any suspected corps we find that the right eye is universally affected, it gives a reasonable ground to suppose, that the deleterious substance has been put in preference into that eye, from design, or perhaps from the facility which the impostor derives from his right hand; a left-handed person will, for the same reason, inflict the injury on the left side.

ULCERS, &c. External sores are constantly feigned by mendicants to obtain relief, or by soldiers to procure their discharge; and for this purpose various acrid applications as well as pressure have been resorted to. _Galen_ detected an imposture of this kind, where a slave, in order to avoid accompanying his master on a long voyage, produced tumours in his knees by the application of _Thapsus_. Ulcers, says _Dr. Hennen_, were formerly extremely prevalent in the army, and were often produced by various acrid substances, but, by the adoption of _Mr. Baynton’s_ practice, they are now rendered much more manageable; where the ulcer is supposed to be excited by unfair means, surgeons are now in the habit of sealing the dressings, and so effectually preventing any improper tampering with them, without immediate discovery. _Dr. Hennen_ says, “I had some time ago a case in a recruit, reported to be _Pompholyx Diutinus_, and resembling that species of Bullæ in a very remarkable degree; after several weeks _Dr. Bartlett_ of the 88th regiment, into whose charge the man was at length transferred, detected a shining particle of the powder of cantharides adhering to an unctuous dressing, which had been purposely applied loosely to the limb, in order that the patient might not be prevented from managing his case in his own way.” On some occasions the _Ranunculus Flammula_ has been employed for these iniquitous purposes; in others, _Verdegris_, or a copper coin, has been bound tight on the sore.

HERNIA has been sometimes simulated by blowing air into the cellular membrane; and PROLAPSUS ANI has been successfully imitated by introducing a foreign gut into the rectum. We shall now dismiss the subject of simulated diseases, leaving such deceptions as that of _Miss M’Avoy_ of Liverpool, to the fate which must await them; and the professional men who have aided them by their credulity, to the contempt which they so richly merit, from the more enlightened part of their medical brethren.

OF THE ADULTERATION OF FOOD.

Although it is generally acknowledged that the representations of the ephemeral writer who lately excited so much public notice, were no less preposterous than the symbols which decorated his volume,[576] yet it cannot be denied that a great part of our daily food, and a still greater portion of our luxuries, are the constant objects of fraudulent adulteration; and what reasonable hope can be entertained of any amendment, while the temptations remain so excessive, the detection so difficult, and the punishment so inadequate to the crime; or, above all, while the trouble and expense of prosecution continue to be so disproportioned to the injury sustained by an individual, as to prevent his seeking redress through the ordinary channels of the law? these observations, perhaps, apply with greater force to the adulteration of articles not subject to the revenue duties of excise or customs, such as bread, milk, &c. Against the substitution or sophistication of those whose sale enriches the treasury, we have numerous enactments, and were we to form our judgment from them alone, we should conclude that fraudulent adulterations were rather deprecated as offences against the revenue, than against the health of the citizen. It is, however, important to remark, that if the health of any person be impaired in consequence of the act of another, as by selling him bad wine, which injures the party’s health, an action (viz. a trespass on the case) will lie. 2 _Espin N. P._ 601; 1 _Rolle Abr._ 90.

The adulteration of bread[577] is specially prohibited by several statutes; the 31 _Geo._ 2, _c._ 29, entitled “An act for the due making of bread, and to regulate the price and assize thereof, and to punish persons who shall adulterate meal, flour, or bread;” after reciting the[578] 51 _Hen._ 3, and 8 _Anne, c._ 18, and making various regulations as to the assize, enacts that bread made for sale shall be of meal or flour, and that no alum, or preparation or mixture in which alum shall be an ingredient, or any other mixture or ingredient whatsoever (except only the genuine meal or flour which ought to be put therein, and common salt, pure water, eggs, milk, yeast, and barm, or such leaven as shall at any time be allowed to be put therein by the court or magistrates.) And that no person shall knowingly put into any corn, meal, or flour, which shall be ground, dressed, bolted, or manufactured for sale, any ingredient, mixture, or thing whatsoever, or shall knowingly sell any thing which shall not be real and genuine meal or flour of the grain the same shall import to be.[579]

With respect to the manufacture of malt liquors, especially porter, it is wholly under the jurisdiction of the excise, and yet there is no article of diet which has so universally the credit of being adulterated, and that too with drugs of the most noxious quality; we have now lying before us “_Minutes taken_ (in Session 1818) _before the Committee of the House of Commons, to whom the petition of several inhabitants of London and its vicinity, complaining of the high price and inferior quality of_ BEER, _was referred, to examine the matter thereof and report the same, with their observations thereupon, to the house_.” _Ordered_, by the House of Commons, _to be printed_, 8 April, 1819. From this it very clearly appears that the illegal addition of various drugs is commonly practised in the breweries; but we are nevertheless inclined to believe that the more extensive and serious frauds of this description, are not carried on in the cauldrons of the brewer, but in the barrels of the publican.[580]

The adulteration of milk has furnished another object of popular clamour, but we are inclined to believe that its dilution with water is the only fraud ever committed with respect to it. _Chalk_, if added, would be so easily detected, and would answer the intended purpose so clumsily, that we may very safely consider such a charge against the London milk-venders as entirely groundless.

In order to assay the quality of milk several different instruments have been proposed; _Mr. Dicas_, mathematical instrument maker in Liverpool, invented for this purpose an instrument which he termed a _lactometer_, and which ascertains the richness of milk from its specific gravity compared with water. _Mr. Edmund Davy_, of Cork, has lately made a very interesting application of the hydrometer,[581] to ascertain the quality of skimmed milk; it appears that in Ireland, especially in its southern districts, skimmed milk forms an indispensable part of the subsistence of the lower orders, and it is stated that the sale of this article in the markets of Cork alone amounts to a thousand pounds per week; the necessity therefore of securing the public against the fraudulent adulteration of so important an article of diet, requires no comment; and it appears that a large proportion exposed for sale had been greatly diluted with water; and that for want of the means of detection, the fraud had been long practised with impunity, not only in Cork, but also in other parts of the country; an unsuccessful attempt had indeed been made to remedy the evil by the appointment of persons called _tasters_, who were empowered to inspect the milk-markets in Cork, and to detain such milk as they considered adulterated; the total incompetency however of these officers was soon discovered, and a committee of respectable farmers was formed, to devise, if possible, some means to prevent the commission of so serious a fraud; on this occasion _Professor Davy_ was consulted, and he accordingly constructed the instrument to which we have alluded, and which differs only from the hydrometer in its scale; so completely has it answered the object of its construction that the milk now brought to market is very rarely found to have been _watered_.

We might now proceed to the consideration of various other articles which are pre-eminently the objects of fraudulent adulteration, but neither our time, nor space, will allow the digression; nor indeed should we have entered into the discussion, but to preserve the order and uniformity of our subject, and to shew its relations to chemical as well as medical inquiry. With respect to the adulteration of our medicinal articles, we have already pointed out (p. 20) the law by which the College of Physicians is empowered to search apothecaries’ shops, and to destroy such drugs as may be spoilt or adulterated; we have only in this place to repeat our desire that its jurisdiction may be enlarged. Very few practitioners have an idea of the alarming extent to which the nefarious practice of medicinal adulteration is carried, nor of the systematic manner in which it is conducted; and it would perhaps have been deemed a duty to have entered into a few details upon the subject, had not the author already published in his PHARMACOLOGIA (_edit. 5th_) an account of the various modes in which our remedies are thus deprived of their most valuable properties, and described the tests by which such frauds may be discovered.

POLICY OF INSURANCE ON LIVES.

“An insurance upon life is a contract by which the underwriter for a certain sum, proportioned to the age, health, profession, and other circumstances of that person, whose life is the object of insurance, engages that the person shall not die within the time limited in the policy; or if he do, that he will pay a sum of money to him in whose favour the policy was granted. Thus, if _A_ lend £100 to _B_, who can give nothing but his personal security for repayment; in order to secure him in case of his death, _B_ applies to _C_ an insurer, to insure his life in favour of _A_, by which means, if _B_ die within the time limited in the policy, _A_ will have a demand upon _C_ for amount of his insurance.” 2 _Park on Insurance_, 636.

The insurance must be made by a party having an interest in the life insured, for by 14 _Geo._ 3, _c._ 48, _s._ 1, it is enacted, “That no insurance should be made by any person or persons, bodies politick or corporate, _on the life or lives_ of any person or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account, such policies should be made, _should have no interest_, or by way of gaming or wagering; and every insurance made contrary to the true intent and meaning thereof should be null and void to all intents and purposes.” And also “That it should not be lawful to make any policy or policies on the live or lives of any person or persons, or other event or events, without inserting in such policy or policies the person’s name interested therein, or for whose use, benefit, or on whose account such policy was to be made or underwrote. And that in all cases where the insured had had an interest in such life or lives, event or events, no greater sum should be recovered, or received from the insurer or insurers, than the amount or value of the interest insured, in such life or lives, or other event or events.”

A creditor has an interest in the life of his debtor, _Anderson_ v. _Edie, K. B. Trin. Term._ 1795, but it must be for a good and legal consideration, not for gaming, _Dwyer_ v. _Edie, Hill. Term._ 1788. If the creditor be paid by the executors, though from funds furnished _aliunde_, (their testator having died insolvent) he cannot recover against the insurers. _Godall and others_ v. _Boldero and others_, 9 _East_ 72.

Death by suicide, or the hands of justice, is generally excepted in all policies, and no premium is returned, though such event should happen on the day of insurance, by _Lord Mansfield_ in _Bermon_ v. _Woodbridge, Doug._ 789 and in _Tyrie_ v. _Fletcher, Cowp._ 669; and as this is a matter of contract, it appears to be unimportant whether the party dying by his own hands be found _felo de se_ or not.

And if there be any fraudulent concealment as to the state of the party’s health or age[582] the policy is void. But “even where there is an express warranty that the person is in good health, it is sufficient that he is in a reasonable good state of health; for it never can mean that the _cetui que vie_ is perfectly free from the seeds of disorder. Nay even if the person, whose life was insured, laboured under a particular infirmity, if it can be proved by medical men, that it did not at all, in their judgment, contribute to his death, the warranty of health has been fully complied with, and the insurer is liable. 2 _Park_ on Ins. 649.

“Thus in an action on a policy made on the life of _Sir James Ross_, for one year from _October 1759_ to _October 1760, warranted in good health at the time of making the policy_; the fact was, that _Sir James_ had received a wound at the battle of La Feldt in the year 1747, in his loins, which had occasioned a partial relaxation or palsy, so that he could not retain his urine or fœces, and which was not mentioned to the insurer. _Sir James_ died of a malignant fever within the time of the insurance. All the physicians and surgeons who were examined for the plaintiff, swore that the wound had no sort of connection with the fever; and that the want of retention was not a disorder that shortened life, but he might, notwithstanding that, have lived to the common age of man; and the surgeons who opened him said, that his intestines were all sound. There was one physician examined for the defendant, who said, the want of retention was paralytic; but being asked to explain, he said it was only a local palsy, arising from the wound, but did not affect life; but upon the whole he did not look upon him as a good life.

“_Lord Mansfield._—The question of fraud cannot exist in this case. When a man make insurance on a life generally, without any representation of the state of the life insured, the insurer takes all the risk, unless there was some fraud in the person insuring, either by his suppressing some circumstance which he knew, or by alleging what was false. But if the person insuring knew no more than the insurer, the latter takes the risk. In this case there is a warranty, and wherever that is the case, it must at all events be proved that the party was a good life, which makes the question on a warranty much larger than that on a fraud. Here it is proved that there was no representation at all, as to the state of life, &c. But where there is a warranty, then nothing need be told; but it must in general be proved, if litigated, _that the life was in fact a good one, and so it may be, though he have a particular infirmity_. The only question is, _Whether he was in a reasonable good state of health, and such a life as ought to be insured on common terms?_” The jury upon this direction, without going out of court, found a verdict for the plaintiff. _Ibid._ 1 _Black. Rep._ 312.

In _Willis_ v. _Poole_, which was on a case of gout,[583] the same learned judge said, “_Such a warranty can never mean that a man has not the seeds of disorder_. We are all born with the seeds of mortality in us. A man subject to the gout is a life capable of being insured, if he has no sickness at the time to make it an unequal contract. _Park_ 650.

“It is not to be concluded, that a disorder with which a person is afflicted before he effects an insurance on his life, is a disorder ‘tending to shorten life,’ within the meaning of a declaration of the insurance offices, from the mere circumstance that he afterwards dies of it, if it be not a disorder necessarily having that tendency. _Watson_ v. _Mainwaring_ (4 _Taunt_ 763). This case turned on the question whether the complaint with which the deceased was afflicted and ultimately died, was an ordinary, or an organic _dyspepsia_. The jury found that it was neither organic nor excessive (_i. e._ at the time of insurance.)”

_Chambre_ J.—“All disorders have more or less a tendency to shorten life, even the most trifling; as for instance, corns may end in a mortification; that is not the meaning of the clause: if _dyspepsia_ were a disorder tending to shorten life within this exception, the lives of half the members of the profession of the law would be uninsurable.”

If the insurance be for a year, the day of the date[584] is included, (thus a policy effected on the 3d of Sept. 1697 insures the whole of the 3d of Sept. 1698, being a year and a day) but the allowance of fifteen days or more usually given to pay up arrears of premium does not cover a death happening within them, (_Want, Exix_, v. _Blunt_, 12 _East._ 183,) for the contract is, that the _insured_ shall _himself_ pay during his life, not that his executors or administrators shall pay; and personal contracts shall be performed according to the words and apparent meaning of the parties, and not by a performance _cy-pres_; see also _Tarleton_ v. _Stainforth_, 5 _T. R._ 695. The death must happen within the time insured, for if a person, whose life is insured for one year, receive a mortal wound within the year, but does not die till after the year, the insurer would not be liable; _Mr. Justice Willes_, in _Lockyer_ v. _Offley_, 1 _T. R._ 252; but if the insurance were for life, he might pay up his arrears within the fifteen days.

It is evident that medical practitioners must have frequent occasion to give testimony on this subject; but it is only necessary for us here to observe, in addition to the general rules of evidence, that the declaration of a wife, whose life had been insured, has been admitted as evidence to prove the state of her health; her husband after her death having brought an action against the insurance company, _Avison_ v. _Lord Kinnaird_; this case is important to medical witnesses in several points. See 2 _Pr. Smith’s R._ 286, 6 _East_. 188.

This branch of the law is also important to the faculty, as they must frequently be called upon to justify the medical certificates which the insurance offices uniformly require before they issue a policy, and it continually involves the very nice question as to what shall or shall not be considered a disease tending to shorten, or endanger life.[585]

So also medical evidence is often required to ascertain the state of a life on which an annuity may have been granted; where either the gross inadequacy of the price paid, or the exorbitance of the annuity secured, becomes a question for legal determination.[586]

SURVIVORSHIP.

As the probable duration of human life, under ordinary circumstances, forms the foundation of the system of life insurance, so also does the comparative chance of duration between two or more lives. These contingencies have been made the subject of minute, and we believe accurate calculation.[587] One observation alone is necessary on this branch of the subject: the tables have been constructed on the basis of local mortalities, they must not therefore be considered as universally applicable to all changes of climate and circumstance.[588]

A more difficult problem however is presented when it is required to estimate the probable chance that one life had survived another, there being no evidence of the decease of either, though a moral presumption exists of the loss of both. The legal application of this question may arise from a variety of circumstances, as where two or more persons perishing by the same accident, as shipwreck, it is necessary to ascertain the survivor in order to determine the course of succession. This was the case of the representatives of _Gen. Stanwix_, A. D. 1772, (_Fearne’s Posthu. Works, p._ 37) “a case which,” according to the learned author, “seemed to mock every principle of judicial decision.” _Gen. Stanwix_, accompanied by his only child, a daughter by his first marriage, and by his second wife, set sail for Ireland; the vessel was lost and not a single person escaped. If _Gen. Stanwix_ had died a widower, and without issue living at the time of his death, that is to say, if his wife and daughter died before him, though but an instant, _his_ nephew became his representative, and entitled to his personal estate; if the daughter was the survivor, then her personal representative (an uncle) was entitled; and on these claims the principal litigation took place, for though it is evident that the second wife also might have a separate next of kin, and her representative did bring forward a distinct claim, the circumstance is not noticed by _Fearne_ (_see note l. c. p._ 39) “The court, finding the arguments on all sides equally solid and ingenious, waved giving any decision, and advised a compromise, to which the several claimants agreed.” So also in the case of _Col. James_ and his wife, who being passengers in the Grosvenor East Indiaman, were in 1782 cast away on the coast of Africa, and attempted with a great part of the crew and other passengers to make their way to some settlement, but in all human probability perished. In this case there was greater latitude for conjecture than in the preceding, as there was not the same presumption that the fate of both had been nearly cotemporaneous; one might have survived a very considerable time, or both may have been living at the moment of the suit; there was also some evidence of their comparative state when last seen, as three or four sailors, who parted from the main body and took a different route, ultimately escaped and arrived in England to relate the melancholy tale of their shipwreck and sufferings. In this case, one of the parties being an infant, it was ordered that it be referred to the master to enquire and report whether it would be for the benefit of the infant to consent to a compromise; and the master having reported in the affirmative, no final judgment was given.

If a man be seized in fee of land and tenements, though but for a moment, his wife is entitled to dower[589]; therefore if both father and son perish by a common accident, and the son survive, however short the period, his wife shall have dower, for the lands descended the instant the father died. (2 _Bl. Com._ 132.) “This doctrine was extended very far by a jury in Wales,[590] where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seized of an estate in fee by survivorship,” (he and his father being joint-tenants) “in consequence of which seizing his widow had a verdict for her dower.” _Broughton_ v. _Randall_, _Cro. Eliz._ 502, _Noy._ 64.[591] Here there could be no dower till the termination of the joint-tenantcy; therefore, if it were possible that they could have died simultaneously, the widow of neither could have been entitled; but this we believe impossible, therefore query, if there had been two widows and no evidence, should the case have been decided on presumption?

So also of joint-tenants (as partners) where the interest of the first deceased passes to the survivor, and not to the heir at law or next of kin of the deceased; but the heir at law or next of kin of the last survivor is entitled, (and see above _Broughton_ v. _Randall_.)

Also as between testator and legatee, if the legatee die first, it is a lapsed legacy and falls into the residue; but if the legatee survive, his executor or administrator shall take it.[592]

According to the civil law, which generally regulates the administration of personalty, it is held that when parent, whether father[593] or mother,[594] and child perish together, as in shipwreck, if the child be of the age of puberty, he shall be presumed to have survived; but on the contrary that he died first if he were under that age: regard being also had to the relation of the party who is to benefit by the decision. (_Domat C. L. p._ 652, 653.) But “it may happen several ways, that the mother may perish under the ruins of a building sooner than the child whom she suckles. It may happen that a son may be killed in a battel before his father; and on the same occasions, and likewise on all others, it may so fall out, that they both die in the _same_[595] instant, or that even he who by reason of his age, or some other infirmity, might be presumed to die first does nevertheless die the last.” (_Domat._ 651).

By the _Code Napoleon, Art._ 721, 722, it is laid down that, of persons under fifteen, the eldest shall be presumed to have survived, above sixty the youngest; if some were under fifteen and others above sixty, the former are presumed to have survived; of persons between fifteen and sixty, males are presumed to have survived, the ages being equal or where the difference does not exceed one year.

The order of nature appears to afford the best general rule, and therefore, in the absence of all evidence to the contrary, it is to be wished that it were established, that the natural succession had taken place, as if no accident had occurred; that the child survived the parent; the nephew, the uncle; descendants, asscendants; legatees, testators; and generally that the younger had outlived the elder.

The decision in the following curious case appears to have been directed in conformity with such a principle. A father and son having perished at the battle of the Dunes, fought near Dunkirk in 1658, and the daughter and sister having at noon, on the very same day and hour, taken the vows in a nunnery, whereby she became _dead in law_[596], a question arose as to survivorship among these three persons, when it was decided that the Nun died first, since her death, being voluntary, was consummated in a moment; whereas that of the father and son, being violent, was probably not immediate. Between the father and son there did not appear to be any data for a just conclusion, and it was therefore decreed, according to the established rule above stated, that the son had survived the father.

But since it must be admitted that questions of _Survivorship_ will occasionally assume a form highly capable of physiological elucidation, we are bound to consider the subject as an article of Medical Jurisprudence. The physical proofs by which we can arrive at a conclusion upon the fact of _Survivorship_, are necessarily precarious and doubtful; but, in the absence of all other testimony, they may be occasionally admissible: a question, for instance, has arisen in a case where the mother and infant have both been found dead, after a clandestine delivery, whether any physiological investigation could determine which of the two survived the other, and upon this question there have been several curious decisions; _Valentini_, in his Pandects, relates an instance in which the mother and offspring both lost their lives during the pangs of a difficult and protracted labour; when the medical witnesses, having considered the extreme delicacy of the infant on the one hand, and the exhaustion of the parent on the other, arrived at the conclusion that the latter must have been the first to perish. The Imperial Chamber of Wetzlar[597] came to a similar decision, in a case somewhat analogous; but in opposition to such an opinion _Capuron_,[598] _Belloc_,[599] and _Sue_[600] have maintained the extreme uncertainty of any general conclusion deduced from so many uncertain data; a judgment in which we heartily concur. Let us, however, suppose a question of _Survivorship_ to have arisen in consequence of a party having perished by famine, on a barren rock; here the lights of science may assist the decision; for the physiologist will tell us that persons so situated will perish with a rapidity proportioned to their youth, and state of robust vigour; a fact which is no less correctly than beautifully illustrated by the poet, in the awful fate of Count Ugolino and his children; where the father perished by inanition on the eighth day of his imprisonment, after having seen his sons, unfortunate victims of the most execrable vengeance ever conceived by man, sink amidst the convulsions of exhausted nature.

In a plurality of deaths occasioned by some common accident, as the falling of a building, an idea of survivorship may be deduced from an examination of the bodies, and of the relative situation in which they were found; it has been also said that if two persons are found dead in the water, and it be clearly made out that they were drowned, that besides the circumstantial presumptions afforded by evidence of greater buoyancy in the one body than in the other, or the knowledge that the one was a swimmer and the other not, we may by careful dissection surmise that death had supervened earlier in the one than in the other, from the appearances presented in the organs immediately acted on by this manner of death, such as _the presence of frothy mucus in the lungs, generated by vain attempts to respire_.[601] With regard to this latter test, we confess that we place no reliance whatever upon its indication, for it will be found to depend upon so many extraneous circumstances as to be incapable of affording any just grounds for a conclusion: equally futile is that opinion which would attach any importance to the thoracic capacity of the individuals in question. Where a number of persons have perished from the inhalation of impure air, we may perhaps be allowed to conclude that those nearest the doors or windows, survived those who were found where the noxious air must have been in its highest state of concentration.

Medical Jurisprudence.