1. The only ground on which the Acting Advocate General on behalf of the alleged lunatic objected to my reporting to the Court that his client was 'of unsound mind and incapable of managing himself and his affairs', was the opinion expressed by Dr. Nolan that Cowasji's mental infirmity was not unsoundness of mind, but weakness of mind or imbecility resulting from old age. Dr. Nolan says that as a medical term, unsoundness of mind answers to what is popularly styled lunacy, and is applied only to the state of mind resulting from disease, not to congenital imbecility or senile decay of the mental powers; or, as I suppose it might be put, to amentia not dementia. The expression 'whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs' is taken from Stat. 16 and 17 Vic., c. 70, Sections 44 and 47, and is repeated in the later English Act 25 and 26 Vic., c. 86, Section 3. From Taylor's Medical Jurisprudence (2nd ed., 1873), Vol. 2, p. 480, it seems that, in that learned writer's opinion, 'unsound mind' is not a medical but a legal expression, denoting an incapacity to manage affairs. It would seem to answer, to the old legal term, non compos mentis which according to Co. Lit. 246 (b) is equivalent to 'of no sound memorie', and is of four sorts: (I) 'Ideota, which from his nativity, by a perpetual infirmitie, is non compos mentis; (II) He that by sickness, grief, or other accident, wholly loseth his memorie and understanding; (III) A lunatique that hath sometime his understanding and sometime not, aliquando gaudet lucidis intervallis, and, therefore, he is called non compos mentis so long as he hath not understanding; (IV) He that by his own vitious act for a time depriveth himself of his memorie and understanding, as he that is drunken'. 'But that last kind of non compos mentis', adds Lord Coke, 'shall give no privilege or benefit to him or to his heirs'; nor would it justify a finding under Act XXXIV of 1858 that the sufferer was incapable of managing himself and his affairs. But I think that any one of the three classes of unsoundness of mind firstly described would justify such a finding.
2. Lord Eldon in Ridgeway v. Darwin 8 Ves. 65 said 'that of late the question (in issuing a Commission of Lunacy) has not been whether the party is absolutely insane; but the Court has thought itself authorized to issue the Commission, provided it be made out that the party is unable to act with any proper or providential management; liable to be robbed by any one; under that imbecility of mind, not strictly insanity, but as to the mischief calling for as much protection as actual insanity'. And he refers to two cases, in one of which the Commission issued because the patient's mind was worn out by years and attention to business; and in the other because the party, though when he could be kept sober a very sensible man, yet was in a constant state of intoxication and perfectly incapable when in that state. Lord Erskine in Ex-parte Cranmer held that the Commission of Lunacy was applicable to incapacity from causes distinct from lunacy, as old age. It has been said that these cases give a greater latitude of meaning to the words 'unsound mind' than was the case in Lord Hardwicke's time: see Shelford on Lunatics (2nd ed.), pages 5 and 105. To some extent this may be true, but I think that the divergence has been exaggerated; as, in Ex-parte Barnsley 3 Atkins 168, Lord Hardwicke's objection was to the form of the return 'that the said William Barnsley was from the weakness of his mind incapable of governing himself and his lands and tenements', and he said that the proper return was that the party was lunaticus or non compos mentis or insance mentis, or, since the proceedings have been in English, of unsound mind, which amounts to the same thing.' His Lordship said distinctly that idiocy equally with express lunacy called for the care of the Court.
3. I may also refer to the case of Empress v. Husen I.L.R. 5 Bom. 262 where Melvill and Nanabhai Haridas, JJ., held that between imbecility and unsound mind there was a distinction without a difference.
4. I think I should put an unduly, restricted meaning on the term unsound mind, and, moreover, a mischievous meaning tending greatly to lessen the usefulness of the Act, if I did not hold these words to comprehend imbecility whether congenital or arising from old age, as well, as lunacy or mental alienation resulting from disease. And I have accordingly reported that the alleged lunatic is of unsound mind and incapable of managing himself and his affairs.