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Zíquidated Damages.*

Allen v. BRAZIER, May T. 1831, 2 Bailey's S. C. Rep. 295;

TINGLEY v. Cutler, 7 Conn. Rep. 291; SLOSSON v.

BEADLE, 7 Johns. N. Y. Rep. 72. Oneal, J., states the following rules to prove whether the When dam damages are to be considered in the nature of a penalty, or as be consider being stated by the parties, and are considered as liquidated ed in the na damages:

nalty or li

quidated. 1st. If the principal sum, or the thing contracted about, is to be paid or enjoyed, and a sum is to be paid in addition, then this additional sum is stated damages.

2d. If the sum be paid is less than the principal sum, or than the value of the thing contracted about, it would generally be regarded as stated damages.

3d. Where the day is fixed for the performance of an act and a postponement would produce but little damage, and a sum is stipulated to be paid, &c. the damages will be considered as stated. Vide vol. 4, p. 119, where the cases are collected; and title Covenant, ib. p. 80.

Lunatics and Xdiots.

I. WHO ARE, p. 524.
II. ON WHOM THE LAW IMPOSES THE OBLIGATION

OF PROOF IN MATTER OF LUNACY, p. 525.
JII. OF THE EVIDENCE IN QUESTIONS OF MENTAL

SANITY, p. 526.
IV. OF THE JURISDICTION OF THE COURT OF

CHANCERY, p. 528.
V. OF THE COMMISSION, p 530.
VI. OF THE INQUISITION, p. 531.
VII. TO WHOM THE CUSTODY OF THE LUNATIC'S

PERSON AND ESTATE MAY BE COMMIT

TED, p. 532.
VIII. OF THE DISCHARGE OF THE COMMITTEE OF

A LUNATIC, p. 533.
IX. SUPERCEDING THE COMMISSION, p. 533.

X. CONTRACTS BY LUNATICS AND IDIOTS, p. 534.
XI. ACTIONS ON BEHALF OF, OR AGAINST, p. 536.
XII. PARTIAL DEPRIVATION OF REASON, p. 539.

* It is frequently very difficult to ascertain with certainty, when there is a for. feiture for the breach of an agreement, whether it be stated damages or a penalty. It is held, whero a sum of money is introduced in the form of a penalty, or other

I. WHO ARE LUNATICS* AND IDIOTS.

1.

BRONER V. FISHER, 1820, 4 Johns. Ch. Rep. 441. A person deat and Kent, Chancellor. Upon the finding of the jury under the dumb trom, commission, in nature of a writ de lunatied inquirends, I refused is not, there to appoint a committee, and adjudged that the defendant was fore, an idi

not to be deemed an idiot from the mere circumstance of being born deaf and dumb. This is a clear settled rule, and numerous instances have occurred in which such afflicted persons hare demonstrably shown, that they were intelligent, and capable of intellectual and moral cultivation. In Elliot's case, (Carter's Rep. 53,) Bridgman, C. J., and the other judges of the C. B., admitted a woman born deaf and dumb, to levy a fine, after due

UL.

uvise, if it be to secure the enjoyment of some object, thc enjoyment is considered the motive of the contract, and the penalty to secure the damages really incurred. As where tho agreement is not to do a specified act, under the penalty of £100, Smith v. Dickinson, 3 B. & P. 630; Orr v. Churchill, 1 Hen. Blk. 227; Astley v. Weldon, 2 B. & P. 346.

In the second place, when the agreement contains provisions for the performance of several things, and a large penalty is stated for the breach of performance, it will be considered as a penalty and not as stated damages; Randall v. Everets, 1 M. & M. 41; Astley v. Weldon, 2 B. & P.346.

And thirdly, the same rule is adopted where the payment of a smaller sum is secured by a larger; Holt, N. P. p. 5. So, also, where the word penalty is speci. fically used, shewing the construction the parties themselves put upon the instrument.

A court of equity will relieve against a penalty upon a compensation, and a court of law will not enforce it beyond the actual damages sustained; but where there is an agreement to pay a particular liquidated sum, neither a court of equity nor a court of law, can make a new agreement for a man, nor is there any room for compensation or relief; 12 Petersdorff's Abr. 361; Reilly v. Jones, 8 Moore, 244; Barton v. Glover, Holt, N. P. 43; Fletcher v. Dyche, 2 T. R. 32; Farrant v. Olmius, 3 B. & A. 692.

• Lunatic, is derived from the Latin word luna, in respect of lucid intervals which iunatics are usually in the enjoyment of, quid lucidis intervallis gaudent; or in cons sequence of a notion, formerly prevalent, that the moon has an influence upon mental disordors. The terın significs, in its legal acceptation, one who had under. standing, which he has lost by the visitation of God; 1 Collinson's Law of Luna. lics, 5.

† An idiot or natural fool, is a person that is devoid of understandifig from his nativity. A man is not stated to be an idiot if he has any glimmering of reason, 60 as to be able to describc himself, his age, or relate any thing with reference to a specific act. Idiotcy has been termed a natural insanity, as the other species of insanity is said to be accidental or adventitious. An idiot is presumed in law to bo forever incapable of obtaining a competent degree of knowledge and understanding to govern himself or his estate, but the law supposes a linatic will be restored to his understanding.

examination of her. He mentioned, also, the case of Hill, who was born deaf and dumb, and who was examined by judge Warburton, and found intelligent, and admitted to levy a fine. So Lord Hardwicke, in Dickenson v. Blissett, Dick. Rep. 268, admitted a person, born deaf and dumb, upon being examined by him, after she came of age, to take possession of her real estate.

2.

IN THE MATTER OF BAKER, 1816, 2 Johns. Ch. Rep. 233.

Kent, Chancellor. It is evident that Barker, the subject of this A person application, is not a lunatic, within the legal meaning of the is worn out term. He is not a person who sometimes has understanding and by college, sometimes not. He is rather of that class of persons described ed to a state by Lord Coke, (Co. Litt. 246, b.) as non compos mentis, who childhood, have lost the memory and understanding by sickness, grief, or is not there other accident. The suggestion here is, that his mind is worn considered

lunatic. out by old age, so as to render him incapable of managing his property. It is represented that he has arrived to a state of second childhood, and stands in absolute need of the protection of the court against his own acts, and against the practices of evil and designing men.

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II. ON WHOM THE LAW IMPOSES THE OBLIGATION

OF PROOF IN MATTER OF LUNACY.

Jackson V. VAN Dusen, Nov. T. 1809, 5 Johns. Rep. 145, 159;

S.P. 2 Kent's Com. 451; BURTON v. Scott, 3 Rand. Rep.
400; JACKSON v. KING, 4 Cowen's N. Y. Rep. 216; LEE
v. Lee, 4 M'Cord's Rep. 183; CHASE V. HATHAWAY,

14 Mass. Rep. 225; 3 Dane's Abr. 492, s. 7. Per Cur. Van Ness, J. In all cases where the act of a par- Sanity is to ty is sought to be avoided on the ground of his mental imbecili

be presum

ed until the ty, the proof of the fact lies upon him who alleges it, and until contrary ap the contrary appears, sanity is to be presumed. This rule of when a gen law is recognized by all the elementary writers on the subject; eral de and in all the adjudged cases which I have met with, both in has been law and equity, the court, in their reasoning and opinions, seem shown, it is to take it for granted; Swinburn, 3, 45; Bac. Abr. let. F. title bent on the

other side to Idiots; Peake's Ev. 373; Lovelass on Wills, 15, 142; 6 Cruise's show that Dig. 14; 3 Atkyns, 361, Tucker v. Phipps; 3 Br. Ch. Rep. 443, the party Attorney General v. Parnther ; 13 Vesey, jun. 87, White v. act, was

sane at the Wilson.

very time This rule, undoubtedly, has its qualifications; one of which when it was

performed Vol. VI.

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is, that after a general derangement has been shown, it is thea incumbent on the other side to show that the party who did the act, was sane at the very time when it was performed.

III. OF THE EVIDENCE IN QUESTIONS OF MENTAL

SANITY.

1.

The test of HALE AND WIFE v. Hills, June T. 1830, 8 Conn. Rep. 39. mental sani ly, is not

Per Cur. Hosmer, C. J. The only controversy, in this case, whether the regarded the defendant's title, claimed by him, under a deed said person has sufficient to be executed by Israel Hills, deceased. It was claimed by the ing to know plaintiffs, that if the deed was ever delivered, the grantor was, what he is at its delivery, of unsound mind. On this point, much evidence doing, but whether he

was exhibited at the trial. The charge of the judge embraced has the

this principle, that the act and deed of one, who has a sufficienright use of his reason. cy of intellect, to know what he is doing, whether he is the sub

ject of debility of mind, or of insanity, is valid. Had the controversy regarded the weak state of the grantor's mind, without a pretence of his being otherwise unsound, I should consider the charge as exceptionable. I admit it to be established, both at law and in chancery, that if a man be legally compos mentis, be he wise or unwise, he is the disposer of his property, and his will stands as a reason for his actions; 1 Pow. on Contr. 30; Osmond v. Fitzroy, et al. 3 P. Wms. 129. But it would demand great consideration before it should be affirmed, that the mere knowledge of the act a person is doing, which, for ought I can discern, may be asserted of an idiot, would constitute him compos mentis, I think he must know something of the nature and consequence of the act.

Be this, however, as it may, it appears from the motion and the charge of the judge, that not long before the delivery of the deed was claimed, Israel Hills was of sound mind; and whether he was compos mentis, or incompetent by reason of delirium, was the real question between the parties. To this state of the controversy the charge of the judge was not adapted.

It is a fact universally known, that a person may be non compos mentis, and yet possess great vigor of intellect, unusual pow. er of reasoning, peculiar subtlety and shrewdness, and a strong recollection of all the relations he stands in, to others, as well as of all the acts and circumstances of his life. His mind, however, is unsound, by reason of the delusive sources of thought; all his deductions within the scope of his malady, be

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ing founded on the assumption of matters as realities without
any foundation, or so distorted and disfigured by fancy, as in ef-
fect to amount to the same thing; Rex v. Hadfield, Erskine's
Speeches.

I admit, that both Lord Coke, and Sir Mathew Hale, define a
a person non compos mentis, to be one who wholly loses his mem-
ory and understanding; but this alone, if the expression is un-
derstood literally, is the condition of a person reduced to idiocy.
These learned judges meant nothing more than, by a common .
figure of speech, putting the cause for the effect, to declare, that
he is a person of unsound mind, who entirely loses the natural
exercise of his faculties. So are they understood, by Sir Wil-
liam Blackstone, who defines a lunatic or person non compos men-
tis, to be, “one who hath bad understanding, but by disease,
grief or other accident, has lost the use of his reason." 1 Bla.
Comm. 304; Beverly's case, 4 Co. 124.

Israel Hills might know, that he was delivering a deed, and
yet the right use of his reason be so impaired, as to leave him
no rational understanding concerning the nature of the transac-
tion. It is justly said, by the late C. J. Swift, “ It must appear
that the person had not understanding sufficient to comprehend
the nature, extent and consequences of the contract he was ma-
king, in order to render it void ;" 1 Swift's Dig. 173. And on
the other hand, although he knows the act he is doing, if this is
the extreme limit of his understanding, he is non compos men-
tis. The charge to the jury, in my opinion, was incorrect.

2.

entitled to

Burton v. Scott, June T. 1825, 3 Rand. Va. Rep. 403. Per Cur. Carr. J. The opinion of a witness as to the sani. On the qués ty of a person, depends for its weight, on the capacity of the lal sanity witness to judge, and his opportunity. Physicians are considered the opin as occupying a high grade on such questions, both because they sicians are are generally men of cultivated minds and observation,and because much from the course of their education and pursuits,they are supposed weight. to have turned their attention more particularly to such subjects, and therefore, to be able to discriminate more accurately; espe. cially a physician who has attended the patient through the disease, which is supposed to have disabled his mind.

Next to physicians, are those who have had the best opportunity of judging; those whose intimacy in the family has gir. en them opportunity of seeing the patient at all times, and watching all the operations of his mind.

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