§ 74. And, first, as to the contracts of lunatics. A lunatic is a person who is crazy or deranged in intellect, and who is incapable of logical sequence of thought or argument.1 This class includes not only those who have been unsound in intellect from their birth, and those who are permanently insane, but also those in whom the fits of lunacy are intermittent, or who are insane only upon some one subject or class of subjects. If the lunacy be permanent and general, the lunatic is wholly incapacitated from contracting, either in his own behalf, or as agent for another person.2 But if it be merely intermittent, or if it be confined to a particular subject or class of subjects, so that the mind can act with perfect sanity upon all other subjects, or has lucid intervals of sanity, the incapacity to contract is limited to the subjects in respect to which the party is insane, and to the time during which he is suffering from a fit of lunacy.3 And if a contract be made by an insane person during a lucid interval, it will be valid although the party be insane immediately before and after.4 If, however, a party be
1 Beverley's Case, 4 Co. 124; Co. Litt. 247 a. 2 Ersk. Institute, 418.
1 This rule was reaffirmed upon great deliberation in the very recent case of Banks v. Goodfellow, Law R. 5 Q. B. 549 (1870), in which the dicta to the contrary in Waring v. Waring, 6 Moore, P. C. 341, and Smith v. Tebbitt, Law R. 1 P. & M. 398, were disapproved. Every person may be deemed of unsound mind who has lost his memory and understanding by old age, sickness, or other accident, so as to render him incapable of transacting his business, and of managing his property. Young v. Stevens, 48 N. H. 135 (1868); Dennett v. Dennett, 44 N. H. 531.
2 Sentance v. Poole, 3 C. & P. 1; Dunnage v. White, 1 Wils. Ch. 67; Hall v. Warren, 9 Ves. 605.
3 Hall v. Warren, 9 Ves. 605; Lewis v. Baird, 3 McLean, 56.
4 This same doctrine was laid down by M. D'Aguesseau, as advocate-general, in the parliament of Paris, in the case of the Prince de Conty; a translation of a portion of which is to be found in 2 Evans's Pothier on Obligations, No. III. We subjoin the extract containing the description of a lucid interval. " It must not be a superficial tranquillity, a shadow of repose, but on the contrary a profound tranquillity, a real repose; not a mere ray of reason, which only serves to render its absence more manifest as soon as it is dissipated, not a flash of lightning, which pierces through the darkness only to render it more thick and dismal, not a glimmering twilight, which connects the day with the night, but a perfect light, a lively and continued radiance, a full and entire day separating the two nights of the madness which precedes, and that which follows it; and, to adopt another image, it is not a deceitful and faithless stillness which follows or forebodes a tempest, but a sure and steady peace for a certain time, a real calm and a perfect serenity; in short, without looking for so many different images to represent a monomaniac, or be insane upon any class of subjects, his power to contract is restricted to those subjects upon which he is entirely sane. And it should, therefore, clearly appear, in the case of a contract by such a person, that his insanity in other particulars did not interfere with his powers or injure his judgment, in the particular matter of his contract. So, also, it should clearly appear, in cases where a contract is made by a lunatic during a lucid interval, that his mind was in complete possession of its sane powers during such interval, and was not in the slightest measure affected by his lunacy. If it be proved that a party is subject to monomania or lunacy, the presumption is, that he is incapable of contracting, and it becomes incumbent upon 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.1 But there is no presumpour idea, it must not be a simple diminution, a remission of the malady, but a kind of temporary cure, an intermission so clearly marked, that it is entirely similar to the restoration of health. And, as it is impossible to judge in a moment of the quality of an interval, it is necessary that it should last sufficiently long to give an entire assurance of the temporary re-establishment of reason; this period it is not possible to define in general, and it depends upon the different kinds of madness. But it is always certain that there must be a time, and that time considerable. These reflections are not only written by the hand of nature on the minds of all men, the law also adds its characters in order to engrave them more profoundly in the heart of judges."
1 Attorney-General v. Parnther, 3 Bro. C. C. 443. In this case Lord . Thurlow 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 present must necessarily do. 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 meet each 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 towards that point which is necessary to the present subject; for though it be true, that a mind, in such possession of itself, ought, when acting, to act efficiently, yet it is extremely difficult to lay down, with tolerable precision, the rules by which such state of mind can be tried. The course of procedure, for the purpose of trying the state of any party's mind, allows of rules. If derangetion of law that a temporary hallucination or delusion resulting from a disease has continued ; and the party must show the existence of such alleged insanity at the time the contract was made.1 The effect of partial insanity, or delusions, not affecting the general faculties, upon the power of a person to make a will or contract, not relating to the subject about which the delusions exist, has indeed been much discussed of late ; and it may now be considered settled that such partial insanity does not affect the competency of the party to contract about other matters. Thus, where a person had been confined as a lunatic for twenty years, and was subject to delusions that he was personally molested by a man who had long been dead, and that he was pursued by evil spirits whom he believed to be visibly present, it was held that he could notwithstanding make a will, bequeathing all his property to a favorite niece.2 ment 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 burden of proof attaches on 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 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 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."