defendant or his agent was cognisant of that fact. It appeared that the contract was entered into between the plaintiff and the defendant's agent in the private room of an inn, when the deposit was paid by a cheque given by the plaintiff, and which was duly honoured. This transaction took place in the month of November; and there was no doubt that at that time the plaintiff was of unsound mind, and incapable of knowing what the nature of the transaction was. On the part of the plaintiff evidence was offered to shew that on several occasions in the preceding month of August, and in October also, he had so conducted himself as to lead to the inevitable conclusion that he was then insane. And further evidence of a similar description was offered of his conduct after the transaction. On the part of the defendant, this evidence was objected to as inadmissible. The learned Judge, however, received it, and a verdict was found for the plaintiff for the amount claimed. Whateley having obtained a rule nisi for a new trial on the ground of the improper reception of this evidence, Keating and Skinner now shewed cause.-Although it may be taken to be an admitted fact upon the record, that, at the time of the alleged contract, the plaintiff was of unsound mind and incapable of contracting, still the correct mode of establishing the disputed fact of the defendant's knowledge of such unsoundness of mind was by the production of evidence of the plaintiff's conduct upon the various occasions before and after that transaction. If a person exhibits palpable marks of insanity immediately before and immediately after any particular event, such conduct may be adduced not only with the view of shewing that at that particular time the party was insane, but also that the fact must have been evident to a person having intercourse with him. These facts form links in the chain of the narrative, which are properly laid before the jury in support of the issue. Assuming the fact of the plaintiff's insanity to be taken as ad 1854. BEAVAN V. M'DONNELL. 1854. BEAVAN v. M'DONNELL. power mitted on the record, still that does not preclude the defendant from establishing the fact by evidence, in order to give the jury the to draw other inferences from it. In Edmunds v. Groves (a), Alderson, B., says, “An admission on the record is merely a waiver of requiring proof of those parts of the record which are not denied, the party being content to rest his claim on the other facts in dispute; but, if any inferences are to be drawn by the jury, they must have the facts from which such inferences are to be drawn proved like any other facts." And further, if this evidence was immaterial to the issue, its reception would not afford any ground for a new trial.-They were then stopped by the Court. Whateley, Gray, and Phipson shewed cause.-The fact of the plaintiff's insanity at the time the contract was entered into being admitted, the only matter in issue was, whether the defendant or his agent was cognisant of the fact. Any evidence not directed to the particular time of the transaction was inadmissible. There is no doubt that the evidence would have been legitimate if the plaintiff's insanity had been in dispute; but it had the effect of withdrawing the attention of the jury from the question in issue, and it is probable that it prejudiced their verdict. The selection of various periods of the plaintiff's life, long antecedent to the transaction, was a hardship upon the defendant, who had neither the means of knowing that such evidence would be produced, nor the power of meeting it. If this be true as regards the evidence of acts prior to the transaction, it applies with much greater force to the evidence of the plaintiff's conduct after that event. Even had the defendant been aware of the plaintiff's subsequent conduct, such knowledge could not be treated as affording any evidence of his having been aware of the plaintiff's state of mind on any prior occa (a) 2 M. & W. 645. 1854. BEAVAN v. sion. If evidence of this character were held admissible, where could the line be drawn? [Alderson, B.—That is the question. If evidence of the man's acts just before and M'DONNELL. just after the bargain would be allowable, why should not evidence of his demeanour some time before and after be equally unobjectionable? It is only a question of degree. If the issue had been whether or not the defendant on a particular day knew that the plaintiff was suffering from a fever, could not it have been shewn that, on the day before and on the day after, the plaintiff had the symptoms of fever so visibly apparent upon him, that it could escape the observation of no one who chose to use his eyes?] POLLOCK, C. B.-We are all of opinion that the rule ought to be discharged. It was moved on two grounds: first, that this evidence ought not to have been received; and secondly, that it did not sustain the issue which the jury found. As to the latter point, the learned Judge reports that he was satisfied with the verdict, which, according to the usual practice of the Court, is sufficient to justify us in disposing of the rule on this point. I may also add, that I perfectly agree with the verdict. There is no doubt plaintiff's counsel that the evidence was proferred by the 1854. BEAVAN v. M'DONNEL!. would weigh in the plaintiff's favour; and, looking at all the evidence in the case, I am not surprised that the jury arrived at the verdict which they returned. ALDERSON, B., concurred. PLATT, B.—I am of the same opinion. The evidence was most material. The character of the plaintiff's insanity before and after the particular transaction was most important, as evidence that the fact of his insanity must have been known to a party dealing with him; and for this purpose, what could be more important than evidence of the apparent state of his mind the day before and the day after? What objection could there be to proof of the plaintiff's demeanour in a previous week? The question is one of degree only, but the evidence is nevertheless admissible. The further off the evidence is carried, the weaker it may be; but it is still evidence, though not proof, of the fact of knowledge. MARTIN, B.-I am clearly of opinion that this evidence was properly admitted. This is a matter depending not so much upon any rule of law as upon the rule of common sense, by which a party is entitled to submit all such facts to the jury as are reasonably relevant to the issue. The plaintiff had a right to prove every fact which would lead the jury to the particular conclusion to which he sought to lead them. That conclusion was, that on the particular evening in question, when the bargain was concluded, it must have been apparent, from the plaintiff's demeanour, that he was then insane. If the plaintiff's counsel were at liberty to prove acts indicative of his insanity shortly before and shortly after the transaction, they might lay before the jury evidence of what his demeanour was on other occasions. The question is one of degree only. If this had been a matter of private inquiry, the question would naturally be how this 1854. BEAVAN V. person had conducted himself on other and different occasions. If a solitary instance of insanity, which had manifested itself a year before, had been brought forward, it M'DONNELL. would in all probability not have influenced the issue. For my own part, I never entertained any doubt upon this question, and I regret that the rule was granted. Rule discharged. SANDERSON v. PROCTER. June 15. In this case Lush had obtained a rule calling on the de- Where a sum fendant to shew cause why the plaintiff should not have his costs taxed under the 15 & 16 Vict. c. 54, s. 4. A The cause had been tried in one of the superior Courts, and the plaintiff had recovered a debt of less than 207. summons was taken out before Alderson, B., at Chambers, for an order allowing the plaintiff his costs, on the ground that it was a case in which the superior Court had concurrent jurisdiction,-as the plaintiff and the defendant dwelt more than twenty miles apart. The learned Judge, after hearing both sides, refused to make any order, and indorsed on the summons "no order," it appearing that the residence of the defendant's wife was within twenty miles of the plaintiff's residence; holding, under the circumstances, that the residence of the wife was the residence of the husband. Quain now shewed cause, and was proceeding to read an affidavit made by the defendant, which had not been read before the learned Judge at Chambers; when Lush, contra, objected. The affidavit cannot be read. It is an invariable rule of practice, that new materials cannot be used upon an appeal against the decision of a mons was taken out before a Judge at Chambers for an order for the plaintiff's costs, on the the case was ground that one in which the superior Court had concurrent jurisdiction with the county court, and the Judge, on the facts, refused to make the order: upon a like ap plication to the Court, affidavits in addition to those adduced at Chambers may be used. |