but we see no reason to think that it is beyond the power of judicial investigation and decision, or may not be disposed of by a jury directed by a judge. In the case before us two delusions disturbed the mind of the testator, the one that he was pursued by spirits, the other, that a man long since dead came personally to molest him. Neither of these delusions, the dead man not having been in any way connected with him, had, or could have had, any influence upon him in disposing of his property. Under these circumstances, then, we see no ground for holding the will to be invalid." The rule, therefore, which was applied for on the ground that the Judge misdirected the jury, and that the verdict was against the weight of evidence, was discharged.' In this way, this very difficult and much disputed question has been set at rest, and it is upon the law as stated in that judgment that the Judges in England at the present time act. In the case of Hobson v. Nicholson, which was an issue sent down by the Court of Probate, and tried before Mellor, J., at Leeds, on the 4th and 5th of August, 1871, it appeared from the evidence that the testator, who had been seen by a medical man some years before his death, had, upon his recommendation, been sent to the Mountstead Asylum. Dr. Smith, the proprietor of the asylum, gave evidence that during the whole time he had been under his care, he had been insane, and had labored under delusions that people were poisoning his food, his clothes, and his bedding, and these delusions were associated, not with any particular person, but with all the persons who were about him. He also believed that he had been born again. Shortly before his removal from the asylum, he was visited by his brother and sister. He knew them, spoke to them rationally, and said, "It was a wrong thing to send me to the asylum at all." After his removal from the asylum, he was said to have improved in health and in mental condition, and some of the witnesses declared that he was free from delusion. Certain experts were called, and said that the change of scene and the near approach of death might in the case of a functional disease cause the delusions to disappear and the

Sir James Hannen, the present Judge of the Divorce Court, was a party to the judgment in Banks v. Goodfellow, and has intimated that he regards that judgment as an accurate statement of the law. Boughton v. Knight, 42 L. J. P. 25.

mind to become clearer. One important piece of evidence was given by the solicitor who drafted his will, which was framed on instructions given by the testator personally, that during the reading of the instrument the testator stopped him and said, "Stop, that is not what I meant;" and explained his meaning fully. The Judge, in summing up, remarked that he could not agree with the doctrine laid down by Lord Penzance in Smith v. Tebbitt, and must adhere to the opinion expressed by the Court of Queen's Bench in Banks v. Goodfellow: that a man might be insane and yet possess a disposing mind, and that if they came to the conclusion that the delusions, although still existing, had not affected the disposition, they would find a verdict for the plaintiffs who propounded the will. The jury, in answer to the three questions which were left to them by the learned Judge, found: 1. That the testator was of sound mind. 2. That there was no connection between the delusions and the disposition. 3. That at the time the will was executed the testator knew what he was doing-knew he was disposing of his property, and knew also the relations of those who might have claims upon him. to himself.1

154. Contracts by a Lunatic. From what has been said with regard to the nature of the disease which is called insanity or lunacy, and from the psychological symptoms which accompany it, it could only be the law that when these symptoms are general, affecting the whole scope of thought and action, and permanent, the lunatic is wholly incapacitated from contracting either in his own behalf or as agent for another person. If, on the other hand, the disease is intermittent, if the delusions occur only from time to time, or if permanent, connect themselves only with one subject or class

Author's notes taken at the trial. Lord Penzance afterwards granted a rule nisi for a new trial in this case, on the ground that the learned Judge had followed Banks e. Goodfellow, but the case was never argued. As to the law of Scotland on the subject of testamentary capacity and warranty, see Stair's Inst. B. 3, tit. 8. § 37; Towart r. Sellars, 5 Dow, P. C. 231, 247; White v. Ballantyne, Shaw App. 472; Watson v. Noble's Trustees, 4 Shaw, 200; McDearmid v. McDearmid, 3 Bligh, N. S. 374; 4 Sh. & Dunlop, 583. See also Erskine's Ins. B. 4, tit. 1, § 27; and Tulloch v. Arbuthnot (Viscount) 25 Jan. 1759; 1 Lord Kames' Eq. 106.

* Sentence v. Poole, 3 Car. & P. 1; Dunnage v. White, 1 Wils. C. C. R. 67; Hall v. Warren, 9 Ves. Jr. 605.

of subjects, then the incapacity to contract is limited to the subjects in respect of which the party is insane, and to the time during which he is suffering from an exacerbation of the disease. If, therefore, as we shall see hereafter, a contract be made by an insane person during a lucid interval, it will be valid and binding although the party be insane immediately before and after. In monomania, which has been described as a lucid interval upon all subjects but one, the capacity to contract is to be restricted to that class of subjects in respect of which such lucid interval exists, or upon which he is entirely sane. It should always be made to appear clearly that the contract was the result of his rational judgment, and that it was not influenced by any disease which might manifest itself antecedently or concurrently. It is to be remembered that when a person is proved to labor under monomania, the presumption is that he is incapable of contracting, and it is incumbent on the other party seeking to recover against him to prove clearly that the lunatic or monomaniac was perfectly sane and in full possession of his powers at the time when the contract was made. But we have to remember that an action for the price of goods sold and delivered, or of work done, or for hire of horses, carriages, or servants, cannot be defeated by showing that the defendant had been found by inquisition to be a lunatic at

Hall v. Warren, 9 Ves. Jr. 605; Lewis v. Baird, 3 McLean, 56.

Attorney General v. Parnither, 3 Bro. Ch. C. 441. There Lord Thurlow said: "If derangement be alleged, it is clearly incumbent on the party alleging it to prove such derangement. If such derangement be proved or be admitted to have existed at any particular period particularly referred to, then the burden of proof attaches to the party alleging such lucid interval, who must show sanity and competence at the period when the act was done and to which the lucid interval refers; and it certainly is of equal importance that the evidence in support of the allegation of a lucid interval after derangement at any period has been established, should be as strong and as demonstrative of such fact as where the object of proof is to establish derangement. The evidence in such a case, applying to stated intervals, ought to go to the state and habit of the person, and not to the accidental interview of any individual, or to the degree of self-possession in any particular act; for from an act with reference to certain circumstances, and which does not of itself mark the restriction of that mind which is deemed necessary, in general, to the disposition and management of affairs, it were certainly extremely dangerous to draw a conclusion so general as that the party who had confessedly before labored under a mental derangement was capable of doing acts binding on himself and others." See Yates v. Boen, 2 Stra. 1104; Thomson v. Leech, 3 Salk. 301; Sergeson v. Sealy, 2 Atk. 413; Faulder v. Silk, 3 Camp. 126; Creagh v. Blood, 2 Jones & Lat. 509.

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the time he received the goods, or had the benefit of the work, or the use of the horses, carriages, and servants,' for the law does not permit the lunatic's infirmity to be made an instrument of fraud upon third parties who dealt with him in good faith. If a lunatic, apparently of sound mind and not known to be otherwise, enters into a fair and bona fide contract, such contract cannot afterwards be set aside. Thus, where a lunatic purchased of an assurance company two annuities for his life and paid down the purchase money, and it appeared that the company had at the time of the transaction no knowledge of his insanity, it was held that the contract could not be avoided. Again, where an insane person contracted for the purchase of an estate and paid down a deposit, and the vendor treated fairly and in good faith, it was held that the deposit could not be recovered back. Contracts entered into by sane persons who subsequently become insane may be enforced against them; and the lunacy of a husband is held to be no answer to an action brought against him upon the ordinary implied contract for the payment of the price of necessaries supplied to his wife.

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[193] It will be evident that the principles which have been laid down with reference to the connection between a delusion entertained and the validity of the act performed will not apply with regard to the contract of marriage. As we have seen that the mere answering of simple questions, the carrying on of a common-place conversation, will not prove the existence of sufficient sanity and capacity to make a will, neither will the ability to understand the ordinary process of the act of marriage, the capacity to go with usual accuracy through a well-known service prove anything with regard to the real ability of the individual to enter into the contract. The essence of all contracts is consent, and a man who is about to enter into a contract of marriage must understand

Prown v. Jodrell, 3 Car. & P. 30; M. & M. 105; Niell v. Morley, 9 Ves. 478; Dane v. Kirkwall, 8 Car. & P. 679; Bagster v. Earl of Portsmouth, 7 D. & R. 614; 5 B. & C. 170.

Nelson v. Duncombe, 9 Beav. 211; 15 L. J., Ch. 296.

Molton v. Camroux, 4 Exch. 17.

Beavan v. McDonnell, 9 Exch. 309.

5 Lord Elden, Owen v, Davies, 1 Ves. Sen. 82; Hall v. Warren, 9 Ves. 605. Read v. Legard, 20 L. J., Exch. 309.

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the new relation which the consummation of this contract creates: he must understand the responsibilities which it imposes, and the duties the performance of which it involves. Unless the individual can appreciate these things he cannot be said to be in a position to give a rational consent, without which the contract will be invalid. In regard to other contracts the capacity of monomaniacs may be undoubted, for in most contracts the thing to be given, or the act to be done or to be refrained from, is perfectly definite, and there is little possibility of any misunderstanding. But this is not the case with regard to marriage, and just in proportion to the difficulty with which, owing to the complicated nature of the duties and privilges of the married state, the character of this act can be understood, so ought to be the rarity of the cases in which persons laboring under partial insanity should enter upon it. Sir John Nicholl has well said concerning this subject, "going through the ceremony was not [194] sufficient to establish the capacity of the party, and that foolish, crazy persons might be instructed to go through the formality of the ceremony though wholly incapable of understanding the marriage contract."1 It is clear that this is the correct view to take of this question, for the very nature of a contract implies that both parties know what they agree to, and if it can be proved that, owing to delusions upon the part of one of the contracting parties, there has been a want of mutuality, the contract evidently becomes of none effect.

? 155. Lunatic's Liability for Torts.-A lunatic who commits a trespass on the person or property of others is, by the common law, held to be liable to an action for damages.2 There can be no dispute as to the excellence of this principle. It may be true that the individual is utterly unconscious of the damage he has done: he may be in such a morbid

1 Browning v. Reane, 2 Phillim. Ecc. Rep. 69. See also Turner v. Meyers, 1 Hagg. Con. Rep. 414; Parker v. Parker, 1 Hagg. C. R. 417; Ellis v. Bowman, 17 Law T. 11; Reg. v. Kelly, Shelf. on Lun., 2d ed., 515; Inst. Juris. Con., b. 2, t. 12, and 15 Geo. II., c. 30. See Private Acts, 23 Geo. II., c. 6.

Weaver v. Ward, Hobart, 134; Bac. Abr. "Trespass" (G); Cross v. Andrews, Cro. Eliz. 622. That intent is immaterial, see per Lord Kenyon, C. J.; Haycraft v. Creasy, 2 East, 101. See also Simmons v. Lillystone, 8 Exch. 431; Stead v. Anderson, 4 C. B. 806; Judgm. Rogers v. Dutt, 13 Moo. P. C. 236.