Liquidated Damages.* ALLEN V. BRAZIER, May T. 1831, 2 Bailey's S. C. Rep. 295; When dam ages are to Oneal, J., states the following rules to prove whether the 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 damages: 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. Lanatics and Idiots. I. WHO ARE, p. 524. II. ON WHOM THE LAW IMPOSES THE OBLIGATION IV. OF THE JURISDICTION OF THE COURT OF V. OF THE COMMISSION, p 530. VI. OF THE INQUISITION, p. 531. VII. TO WHOM THE CUSTODY OF THE LUNATIC'S VIII. OF THE DISCHARGE OF THE COMMITTEE OF 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 forfeiture for the breach of an agreement, whether it be stated damages or a penalty. It is held, where a sum of money is introduced in the form of a penalty, or other ed in the na ture of a pe nalty or li quidated. A person deat and I. WHO ARE LUNATICS AND IDIOTS.+ 1. BRONER V. FISHER, 1820, 4 Johns. Ch. Rep. 441. Kent, Chancellor. Upon the finding of the jury under the dub from commission, in nature of a writ de lunatied inquirends, I refused his nativity 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 have 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 wise, if it be to secure the enjoyment of some object, the enjoyment is considered the motive of the contract, and the penalty to secure the damages really incurred. As where the 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 instru ment. 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 ▼. 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 lunatics 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 disorders. The term 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 tics, 5. + An idiot or natural fool, is a person that is devoid of understanding from his nativity. A man is not stated to be an idiot if he has any glimmering of reason, so as to be able to describe 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 lunatic 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. whose mind and reduc of second 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 old age, 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 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. II. ON WHOM THE LAW IMPOSES THE OBLIGATION 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. fore to be considered a lunatic. rangement 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 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 pears; but 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 then incum to take it for granted; Swinburn, 3, 45; Bac. Abr. let. F. title bent on the 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 part the Attorney General v. Parnther; 13 Vesey, jun. 87, White v. act, was Wilson. shown, it is other side to sane at the very time This rule, undoubtedly, has its qualifications; one of which when it was performed. VOL. VI. 67 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 1. The test of mental sani ty, is not person has sufficient understand has the HALE AND WIFE V. HILLS, June T. 1830, 8 Conn. Rep. 39. 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 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 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 subject 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 power 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 ing founded on the assumption of matters as realities without any foundation, or so distorted and disfigured by fancy, as in effect 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 memory and understanding; but this alone, if the expression is understood 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 William Blackstone, who defines a lunatic or person non compos mentis, to be, "one who hath had understanding, but by disease, grief or other accident, has lost the use of his reason." Comm. 304; Beverly's case, 4 Co. 124. 1 Bla. 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 transaction. 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 making, 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 mentis. The charge to the jury, in my opinion, was incorrect. 2. tion of men 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 ques ty of a person, depends for its weight, on the capacity of the tal sanity witness to judge, and his opportunity. Physicians are considered the opin ions of phy 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 oppor'tunity of judging; those whose intimacy in the family has giv en them opportunity of seeing the patient at all times, and watching all the operations of his mind. |