deranged. It need scarcely be observed, that this peculiarity of mind, although constantly mistaken for eccentricity, is, in truth, slumbering undeveloped madness. The signs which ought to create suspicion of this state, are these:-insanity being more or less prevalent in the family; a singularity of manners, opinions, and actions inexplicable by the peculiar pursuits of the individual; enormous self esteem, mischievous schemes obstinately persisted in, and uncorrected by experience.

8. The presumption of law is in favour of sanity: and, therefore, if a person has never been subject to a commission of lunacy, nor has had an unsound state of mind imputed to him by his friends or relations, or even by common fame (o), the burthen of proof is cast upon those who impeach his understanding. And where a particular transaction is sought to be avoided on the ground of insanity, the evidence of it ought to apply to that particular period; and the question in such a case is, not whether the party had ever been insane before, but whether he was of sufficient sound mind on the day of the contract in question. On the other hand, as the law presumes the state of a man's mind to continue unchanged until the contrary be made manifest; if a person has ever been subject to a commission, or to any restraint permitted by law, even a domestic restraint, clearly and plainly imposed upon him in consequence of undisputed insanity, the burthen of proof shewing sanity is thrown upon those who seek to establish a lucid interval, or the soundness of his understanding (p). But, where there is satisfactory evidence of the sanity of a party at the time of a contract, the antecedent state of his mind, and the causes of it, may be laid totally out of view (g).

The observations of Lord Thurlow upon the evidence of the competency of a party, after previous derange

(0) The imputation of friends or relations, and the idle rumours of the world, are not entitled to any weight or consideration in inquiries of this nature, but ought to be dismissed from the minds of the judge and jury; who are bound to form their con

clusions from impartial evidence of facts, and not to be led astray by any such fertile sources of error and injustice.

(p) White v. Wilson, 13 Ves. 88; and see Butl. Co. Litt. 246. b., n. (1). (q) 1 Dow, P. C. 177.

ment had been established, claim attention. His Lordship said "There is an infinite, nay, almost an insurmountable difficulty, in laying down abstract propositions upon a subject which depends upon such a variety of circumstances, as the legal competency of the mind to the act in which it is engaged, if its competency be impeached by positive evidence of an anterior derangement, or affected by circumstances of bodily debility, sufficiently strong to lead to a suspicion of intellectual incapacity. General rules are easily framed, but the application of them creates considerable difficulty in all cases in which the rule is not sufficiently comprehensive to embrace every circumstance which may enter into and materially affect the particular case. There can be no difficulty in saying, that if a mind be possessed of itself, and that, at the period of time, such mind acted, that it ought to act efficiently. But this rule goes very little way; for it is extremely difficult to lay down, with tolerable precision, the rules by which such state of mind can be tried; but the course of procedure for such purpose allows of rules. 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, but a lucid interval be alleged to have prevailed at the period particularly referred to, then the burthen of proof attaches on the party alleging such lucid interval, who must shew sanity and competency 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 the 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 in general deemed necessary to the disposition and management of affairs, it were ex

per

tremely dangerous to draw a conclusion so general, as that the party, who had confessedly before laboured under a mental derangement, was capable of doing acts binding on himself and others" (r). Lord Chancellor Eldon is reported to have said, that he could not assent to Lord Thurlow's proposition, that where lunacy is once established by clear evidence, the party ought to be restored to as perfect a state of mind as he had before; to be proved by evidence as clear and satisfactory; and supposed the strongest mind reduced by the delirium of a fever, or any other cause, to a very inferior degree of capacity, admitting of making a will of sonal estate, to which a boy of the age of fourteen is competent, the conclusion is not just, that, as that person is not what he had been, he should not be allowed to make a will of personal estate. There may be frequent instances of men restored to a state of mind inferior to what they possessed before; yet it would not be right to support commissions against them (s). And in cases where the validity of a deed or other instrument is in dispute, the question is not, whether a man has been insane, but, whether he has recovered such a quantum of disposing mind at the time of execution as ought to give it effect (t).

It was contended in a recent case, where there was evidence of a lunatic's having had at least one lucid interval, that it was no objection to the admissibility of the presumption that a lease had been surrendered, that the party entitled to the reversion had been found a lunatic by inquisition; because such finding is not inconsistent with the supposition that the lunatic might have had lucid intervals, and that during one of such lucid intervals such surrender might have been accepted (u).

9. As delay has a tendency to deprive parties claiming under deeds or other instruments of the means of shewing the capacity of the persons who executed them, length of time is an important feature in all cases, in raising a pre

(r) Attorney-General v. Parnther, 3 Bro. C. C. 443. See post, ch. vii.

sect. 5.

(s) Ex parte Holyland, 11 Ves. 11.

(t) 5 Dow, P. C. 236.

(u) Lopdall v. Creagh, Bligh's Rep. new series, Vol. p. 266.

sumption of sanity, where an attempt is made at a distant period to impeach them on the ground of the mental incapacity of the parties who executed them.

This principle was laid down by Lord Chancellor Eldon, that if property has been disposed of twenty or thirty years before, formally, and with the concurrence and assistance of individuals of good character; and if that disposition has not been quarrelled with as speedily as may be, and only challenged when the parties best acquainted with the whole circumstances of the transaction are dead and gone-it is dangerous to set aside that disposition, at the distance of twenty or thirty years, upon a ground so fallible as human memory and testimony as to the state of the person making that disposition at other moments, without at all applying to the moment when he executed the deed sought to be impeached (v). And therefore, in a case where, on the one side, there was clear and positive evidence of the sanity of a party who executed deeds; and, on the other, only general evidence to impeach them, which consistently with the posi tive evidence could not be true, the deeds were sustained. Thus, in support of an action brought in 1808, to reduce certain deeds executed between 1782 and 1799, upon the ground of the insanity of the grantor; parol evidence was given that he was quite deranged from 1781, till his death in 1804; the evidence applying to his insanity generally, and not to the particular moments when the deeds were executed: and this evidence was encountered by parol evidence of his general sanity during the same period; and the latter evidence corroborated by notes or receipts, written by the grantor, having reference to the contents of the deeds, and shewing that he understood their nature and effect; and also by the deeds themselves, which were rational in his circumstances; corroborated also by the circumstances of the deeds being attested by witnesses of unimpeached credit, who considered the grantor sane, and of his having been, in 1784, served heir, and infeft in the subjects conveyed by the deeds, and having sold part of the lands, and mortgaged the remainder; such transactions

(v) 5 Dow, Parl. Cas. 236, 237.

having proceeded on the supposition of his sanity, and remaining unchallenged until after the death of the grantor, when an action was brought to set aside the deeds. The Court of Session in Scotland reduced the deeds; but, on appeal to the House of Lords, that decision was reversed, and the deeds were held to be valid (w). It obviously becomes much more difficult to ascertain the party's capacity after his death, when the matter is to be determined by the opinions of witnesses, whose faculties and degrees of understanding differ among themselves; and who can no otherwise represent a state of the case for the opinion of others, than by relating instances of conduct and conversations, which, when stripped of the many circumstances that must necessarily attend them, give but a very imperfect idea of the true state of the fact. Where the persons who have prepared deeds and are the attesting witnesses to their execution, are dead, when process is commenced for setting such deeds aside, it will be assumed, in the absence of evidence to the contrary, that they would have sworn that the party was of sane mind when the deeds were executed, and will afford a strong presumption in favour of the sanity of the grantor, although it be attempted to disprove it by general parol testimony of incompetency at other times (x).

Considerable difficulties frequently arise in estimating the testimony of witnesses in these cases, for it often happens, where witnesses are describing the condition of a person at a former period; that those on one side describe the person as being as mad as possible, and those on the other side represent the person as having the strongest and soundest intellect (y). A remarkable instance of such conflict of evidence in a case of this nature is reported. On a trial at bar on an issue out of Chancery, devisavit vel non, the three subscribing witnesses to the testator's will, and the two surviving ones to a codicil made four years subsequent to the will, and a dozen servants of the testator, all unanimously swore him to be utterly incapable of making a will, or transacting any other business at the time of signing the supposed Towart v. Sellars, 5 Dow, (y) 5 Dow, P. C. 242. See post, ch. vii. s. 1.

1.

Dow, P. C. 245.