364. Drunken Person Liable for Torts. It is a well known principle of law that to the constitution of a right of action for a bodily injury, whether direct or consequential, the existence of an evil intention in the mind of the wrongdoer is not essential,' and hence the law has held that an infant or a lunatic' shall be answerable for his torts, although wholly incapable of design. It follows therefore that drunkenness, which is a defence only in that it reduces a sane man to the condition of a child or a madman, will be no defence in an action founded on tort. Indeed, drunkenness may, in a certain way, be introduced into the case as an aggravating circumstance when the question as to whether due care had been taken to avoid the accident out of which the action arose, is material. Thus, in an action which was brought for injury caused to the plaintiff by the negligent driving of a sleigh, an American Judge, Gibson, C. J., said: "The evidence of intoxication ought to have been received, not because the legal consequences of a drunken man's acts are different from those of a sober man's acts, but because, where the evidence of negligence is nearly balanced, the fact of drunkenness might turn the scale, inasmuch as a man partially bereft of his faculties would be less observant than if he were sober, and less regardful of the safety of others. For this purpose, but certainly not to inflame the damages, the evidence ought to be admitted." It has been decided that drunkenness is not an excuse for slander."

365. Effect of Drunkenness on Testamentary Capacity. We have already mentioned incidently that intoxication when carried to such extent as to produce mental oblivion, deprives the party, during the continuance of that state, of the ability to execute a valid will. The general

Lambert v. Bessey, T. Raym. 422; Gibbon v. Pepper, Salk. 637; Scott v. Shepherd, 2 W. Black. 864.

* Per Lord Kenyon, C. J., 8 T. R. 337; Hodsman v. Grissel, Noy, 129; Co. Litt. 180 b. n.; Johnson v. Pie, 1 Lev. 109.

Weaver v. Ward, Hobart, 138; Brown's Com., p. 675. See also Morse v. Crawford, 17 Vt. 499.

+ Co. Litt. 247 (a); 4 Bl. Com. 25.

5 Wynne v. Allard, 5 Watts & S. 525. See also Reed v. Harper, 25 Iowa, 87.

Reed v. Harper, 25 Iowa, 87.

7 Swinb. pt. 2, sec. 6. "He that is overcome with drink, during the time of his

rule of law with reference to wills is that where there is no appearance of artifice in procuring the will, and it is reasonable in itself, it shall stand, and the law as applicable to drunkenness and testamentary capacity is, as might have been expected, very similar to that which we have already discussed in connection with contracts. In one case, it was said that drunkenness in the testator of itself is no legal exception to the validity of a will, but where from habitual intoxication a man's senses are besotted and his understanding gone, he could make no will. But, as we have seen, this doctrine is open to some question, and the better opinion would seem to be that if the drunkenness was so profound as to deprive the individual of a disposing mind, it would invalidate any will executed during the continuance of such incapacity just as much as the mental disease which is the result of a long course of habitual indulgence. But it is the fact that drunkenness does not of itself' imply the invalidity of the will, for, as we have seen, there are various degrees of drunkenness, and these produce various degrees of capacity, and the law has said that all men with the capacity to make wills may do so; and has not said, only men of a certain capacity shall be at liberty to exercise this privilege. But as the delirium of drunkenness is short-lived, there is no legal presumption of the continuance of this incapacity, and even a person who is addicted to the frequent and injurious use of ardent spirits may execute a perfectly valid will, if that will is the result of his free choice, influenced only by reason and affection, and uninfluenced by poison or disease.* In this then there is a distinction, in so far as law is con

drunkenness, is compared to a madman, and therefore if he make his testament at that time, it is void in law. Which is to be understood when he is so excessively drunk that he is utterly deprived of the use of reason and understanding. Otherwise, if he is not clean spent, albeit his understanding is obscured and his memory troubled, yet he may make his testament, being in that case." Ayrey v. Hill, 2 Add. 206; Billinghurst . Vickers, 1 Phillim. 191; Wheeler v. Alderson, 3 Hagg. 574.

Starret v. Douglass, 2 Yates, 48. "Drunkenness is itself a species of insanity, and might invalidate a will made during a drunken fit," remarked Harrington, J., in Duffield v. Morria' Exr., 2 Harr. 383.

Hight v. Wilson, 1 Dallas, 91; Gardner v. Gardner, 22 Wend. 526. See also Shelf. on Lunatics, 274, 304.

3 See Temple v. Temple, 1 Hen. & Munf. 476. See also Black v. Ellis, 3 Hill, 68; Harper's Will, 4 Bibb, 244; McSorley v. McSorley, 2 Bradf. Sur. 188. See also Shelf, on Lunacy, 276.

cerned, between drunkenness and insanity, a distinction which is well brought out by Sir John Nicholl. In the case of insanity, the disease may be latent, but in that of drunkenness, if it is to affect the will at all, it must be actual, it must manifest itself in excitement, and excitement in such a degree as to vitiate the act done; "for I suppose," he remarked, "I suppose it will be readily conceded that under a mere slight degree of that excitement the memory and the understanding may be in substance as correct as in the total absence of any exciting cause. Whether, where the excitement in some degree is proved to have actually subsisted at the time of the act done, it did or did not subsist in the requisite degree to vitiate the act done, must depend in each case upon due consideration of all the circumstances of that case in particular; it belonging to a description of cases that admits of no more definite rule applicable to the determination of them than the one I have suggested, that I am aware of.”

366. The Burden of Proof.—Where drunkenness is relied upon as evidence of a want of testamentary capacity, the burden of proof of its existence is upon those who desire to invalidate the will.2 In a nisi prius case which was tried before Lord Campbell, the will was impeached on the ground that the testator's mind was impaired by drinking, and that he was under the undue influence of the devisee or his family. It appeared that the testator had been addicted to drinking, and had had delirium tremens a few days before the will was executed, and that the will was drawn up by the son of the devisee at his house, he being an old friend of the testator. It was held that the question was whether the testator was sane and sensible and able to understand the nature and contents of his will at the time it was executed, and that if the testator had really requested the son of the devisee to draw up the will, and it was his voluntary and spontaneous act, not under constraint and free from force or fraud and from imposition and importunity, there was no undue infiu

Jarman on Wills, p 54. See Cory v. Cory, 1 Ves., Sen. 19.

2 Andress v. Weller & Miller, 2 Green Ch. 604.

ence, and the will was valid.' In a case which came before the New York Court of Appeals, and which is referred to in Dr. Redfield's work on the Law of Wills, it was held that neither intoxication nor the actual stimulus of intoxicating spirits at the time of executing the will, incapacitates the testator, unless the excitement be such as to disorder his faculties and pervert his judgment. It was further held that the dispositions of the will may be considered for the purpose of determining the testator's condition at the time of executing it. But in order to defeat the will upon this ground alone, such dispositions must not only be in some degree unreasonable and extravagant, but they must depart so far from what would be regarded as natural as to appear fairly referable to no other cause but a disordered intellect. The will of a confirmed drunkard, although executed after a protracted debauch, and although the testator had drunk several times during the day, at the time of executing it, was confirmed.3

2367. Incapacity produced by Medicines.-It has been held that mental incapacity on the part of the testator, when produced by the use of medicines, is sufficient to invalidate a will. This was a very obvious and necessary deduction from the principles which have been dwelt upon above. It is the actual condition of the mind, of the mental capacity, the actual sentient relation of the testator to the circumstances of his life and to the claims which affection, blood, or service may have upon his remembrance and generosity, that is the gauge of his competency to make a valid will. The cause of this is important to the medical man who would treat the disease, but it is unimportant to the judicial tribunal which has to decide upon the validity or invalidity of a will. It therefore matters very little how the absence of the sense which is required for testamentary capacity was produced, whether by the voluntary act of the person who made the will, or by the course of treatment which was prescribed by his physician.

Handley v. Stacey, 1 F. & F. 574.

2 3d ed., 163.

3 Peck v. Carey, 27 N. Y. 9. Stedham v. Stedham, 32 Ala. 525.

2368. Drunkenness as affecting Responsibility.—We come now to the consideration of an important question in relation to intemperance, and that is, how far drunkenness affects the responsibility of those who commit crimes during the time that they are under the influence of intoxicants. The old law on the subject, as embodied in the words of Sir Edward Coke, is well known: "A man who is voluntarias dæmon hath no privilege thereby, but what ill soever he doth, his drunkenness doth aggravate it." After what has been said in relation to torts, this rule of criminal law will be regarded as reasonable enough, for in one aspect a crime may be looked upon as a tort affecting the community at large, instead of a private individual. A similar rule existed in Greece, where, according to Puffendorf, "the law of Pittacus enacted, that he who committed a crime when drunk should receive a double punishment-one for the crime itself, and the other for the inebriety which prompted him to commit it."2 This law has also been laid down repeatedly by English Judges. Thus, Parke, B., said: "If a man voluntarily makes himself drunk, that is no excuse for any crime he may commit whilst in that state: he must take the consequences of his own act, for many crimes would otherwise go unpunished." So Alderson, B., observed that: "If a man chooses to get drunk, it is his own voluntary act: it is very different from madness which is not caused by the act of the person. That voluntary species of madness which it is in a party's power to abstain from he must answer for." This law, like most of the good law which has been enunciated by English Judges, has been adopted in American Courts of law, and we find Story, J., remarking that although insanity, as a general rule, produces irresponsibility, "an exception is, when the crime is com

I Co. Litt. 247 a.

2 Puffendorff's Law B. viii., c. 3. The Roman law, on the other hand, admitted drunkenness as an excuse for crime. §§ 46, 16, 6.

3 Rex v. Thomas, 7 C. & P. 820; 4 Stevens' Com., p. 113. See also 1 Hale, 7, where Lord Hale, speaking of drunkenness, remarked: "This vice doth deprive a man of his reason, and puts many men into a perfect or temporary frenzy; but by the laws of England such a person shall have no privileges by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses." The law of Scotland has recognized the same principle. See Erskine's Principles, p. 730.

Reg. v. Meakin, 7 Car. & P. 297. See 1 Russell on Crimes, 8. See also Burrow's Case, 1 Lewin C. C. 75; Rennie's Case, 1 Lewin C. C. 76.