1. The power of attorney of a lunatic, or of one
non compos
mentis is void.
2. When evidence has been given tending to show the insanity of
a grantor and other evidence tending to show his sanity, a medical
expert cannot be asked his opinion respecting that person's sanity
or insanity, forming his opinion from the facts and symptoms
detailed in the evidence.
3. Such a witness may be asked his opinion upon a case
hypothetically stated, or upon a case where the facts are certain
and found, but he will not be allowed to determine from the
evidence what the facts are and to give his opinion upon them.
4. Under the California statutes of limitations, a plaintiff in
ejectment who has established a legal title in himself, is presumed
to have had actual possession of the land within five years next
prior to the commencement of his suit unless an actual adverse
possession by another is affirmatively proved.
Error to the Circuit Court for the District of California, in
which court Mary Hall and her four children brought ejectment
against Henry Dexter, both parties claiming under John Hall, who
died intestate, the plaintiffs as his widow and children, the
defendant as his grantee. The case was thus:
On the 30th of December, 1848, T. W. Leavenworth, then alcalde
of San Francisco, granted to Hall, a lieutenant of our navy who
happened to be in service off San Francisco, a piece of land, part
of the pueblo lands situate within the corporate limits of the city
as defined in 1851, east of Larkin and north of Johnson Street. The
deed was duly recorded before April
Page 82 U. S. 10
3, 1850, in a proper book deposited in the office of the
recorder of the County of San Francisco.
Hall afterwards was sent to a lunatic asylum near Philadelphia.
While there, he executed, on the 27th of December, 1852, a power of
attorney to one Harris, his brother-in-law, to sell this land. The
power was acknowledged in the usual form before one Broadhead, a
commissioner for California, resident in Philadelphia, who went to
the asylum, saw Hall, read the power of attorney to him, asked him
if he understood it, which he said he did, and that he desired the
land sold for the benefit of his wife and children. Under this
power, the land was conveyed to persons who afterwards conveyed to
Dexter, the defendant.
Subsequently to the grant made by the Alcalde Leavenworth to
Hall, the claim of San Francisco to her pueblo lands was submitted
to the United states Board of Land Commissioners, and on the 3d of
October, 1854, confirmed. An appeal was taken to the district
court, and thence transferred to the circuit court, where, on the
18th of May, 1865, the claim of the city to the lands, including
the lot now in controversy, was confirmed. And this decree of the
circuit court was affirmed by this Court, the mandate having been
sent down and filed February 4, 1867. On the 20th of June, 1855, a
city ordinance, known as the Van Ness ordinance, was passed by
which the city relinquished and granted all her right and claim to
the lands within her corporate limits, as defined by the charter of
1851, to the parties in actual possession thereof, by themselves or
tenants, on or before January 1, 1855, provided such possession was
kept up until the introduction of the ordinance into the common
councils, or, if interrupted by an intruder, had been, or might be
recovered by legal process. The ordinance also declared that all
persons who held title to lands within said charter limits, lying
east of Larkin Street and northeast of Johnson Street, by virtue of
any grant by any ayuntamiento, town council, or alcalde of the
pueblo after the 7th of July, 1846, and before the incorporation of
the city, which grant, or a material portion of which, was recorded
in a proper book of
Page 82 U. S. 11
records, deposited in the office of the Recorder of the County
of San Francisco on or before April 3d, 1850, should, for all
purposes contemplated by the ordinance, be decreed to be the
possessors of the land granted, although it might be in the actual
occupancy of persons holding the same adverse to the grantees. As
the lot granted to Hall was within this description, the ordinance
assured to him whatever right and title the city then had, and
confirmed, so far as the city could confirm it, the alcalde's
grant.
Subsequently, on the 11th of March, 1858, the legislature of the
state passed an act ratifying and confirming what the city councils
had done by the Van Ness ordinance, and on the 1st of July, 1864,
Congress enacted that all the right and title of the United States
to the lands within the corporate limits of the City of San
Francisco, as defined in the act incorporating the city, passed by
the Legislature of California April 15, 1851, were thereby
relinquished and granted to the city for the uses and purposes
specified in the ordinance thereof, ratified by an act of the
legislature of the state, approved on the 11th of March, 1858,
excepting, however, from the relinquishment certain parcels not
included in the grant to Hall.
Hall died in 1860 in the asylum, leaving his widow already
mentioned, and four children; all minors at that time, the eldest
being twenty years old, the next seventeen, the next fifteen, and
the youngest nine.
In 1866, Mrs. Hall and these children (the youngest not yet
being of age, and suing by a guardian), brought the ejectment
mentioned as this suit.
At the time of the suit there were certain acts of California in
force, as follows:
1st. An act of April 22, 1850, [
Footnote 1] "defining the time for commencing civil
actions." The 9th section of this act read thus:
"In every action for the recovery of real property or the
possession thereof, the person establishing a legal title to
the
Page 82 U. S. 12
premises shall be presumed to have been possessed thereof within
the time prescribed by law, and the occupation of such premises by
any other person shall be deemed to have been under and in
subordination to the legal title unless it appear that such
premises have been held and possessed adversely to such legal
title, for five years before the commencement of such action."
2d. An Act of March 5, 1864, [
Footnote 2] "to limit the time for the commencement of
civil actions in certain cases." This act read as follows:
"In any action which shall be commenced more than one year after
this act takes effect for the recovery of real property situated in
the City and County of San Francisco or for the recovery of the
possession thereof, none of the provisions of the act entitled
&c., passed March 11, 1858 [the act already referred to,
[
Footnote 3] as of that date.
-- REP.], and none of the provisions of either of the orders or
ordinances therein recited or referred to, shall be deemed to give,
confirm, or otherwise aid the right or title set up or claimed by
any party unless such party, his ancestor, predecessor, or grantor
shall have had actual possession of the land in dispute within five
years next before the commencement of such action, the time already
elapsed when this act takes effect to be included in the
computation."
In this act there was no provision saving the rights of minors
or persons otherwise under disabilities. However, an Act passed
April 4, 1864, [
Footnote 4]
supplementary to the original act, did make an exception in favor
of such persons, including persons "within the age of majority,"
and enacted that
"the time during which such inability shall have continued shall
not be deemed any portion of the period of limitation, established
in the said act, to which this is supplementary."
Intermediate between these acts was a third one, that of April
11, 1855, [
Footnote 5] to amend
an act entitled "An act defining
Page 82 U. S. 13
the time for commencing civil actions," passed April 22, 1850.
This intermediate act provided that
"No action for the recovery of real property or for the recovery
of the possession thereof shall be maintained unless it appear that
the plaintiff, his ancestor, or grantor, was seized or possessed of
the premises in question, within five years before the commencement
of such action; provided however that an action may be maintained
by a party claiming such real estate, or the possession thereof,
under title derived from the Spanish or Mexican governments, or the
authorities thereof, if such action be commenced within five years
after final confirmation of such title by the United States or its
legally constituted authorities."
The plaintiffs having shown Hall's paper title, including the
Van Ness ordinance, and the statutes of California, and of the
United States in aid thereof, having shown also the death of Hall,
and their own heirship under the laws of California, rested.
The defendant then requested the court to charge the jury that
upon these facts he was entitled to a verdict upon the following
grounds:
"That the plaintiffs relied on the grant from Leavenworth,
alcalde, upon the Van Ness ordinance, and the laws of California,
and of the United States in aid thereof. That having commenced
their action more than one year after the Act of California,
approved March 5, 1864, and entitled 'An act to limit the time for
the commencement of civil actions in certain cases,' took effect,
they must show an actual possession of the premises in themselves
or their ancestors, within five years next before the commencement
of this action, which they had failed to do."
The court, however, refused so to charge, and the case, under
exception to the refusal, proceeded.
In this further progress of it, certain depositions of persons
resident at Philadelphia (in an asylum near which city it will be
remembered that Hall had been confined), were read, some tending to
show that on the 27th December, 1857 (the date of execution of the
power of attorney under
Page 82 U. S. 14
which the land had been sold to the defendants or his grantors),
Hall was sane, and others tending to show that he was insane. All
these depositions being read the defendants called Dr. Elliot, a
physician of San Francisco, who had been long in practice, and was
still in practice, and asked him this question (he having read
carefully all the testimony in the case relating to Hall's sanity
and insanity):
"From the facts stated in these depositions and the symptoms
stated, what, in your opinion, was the state of Hall's mind
December 27, 1852, as to sanity or insanity?"
The plaintiffs objected to the witness expressing any opinion
founded on the testimony adduced on both sides, and the court
sustained the objection; permitting the witness, however, to give
his opinion upon the testimony adduced by the plaintiffs. The
witness then stated, under the defendant's exception to the ruling,
that in his opinion as a medical man of large experience, from the
facts and symptoms detailed by the
plaintiffs' witnesses,
Hall was capable of doing business and of executing a power of
attorney before, at, and after December 27, 1852, and that such a
case of insanity as his appeared to have been, rarely occurred
without lucid intervals.
The defendant in rebuttal offered to prove that he had purchased
the premises in good faith, for a full consideration, and without
notice of the alleged insanity of Hall. But the court rejected the
testimony.
The great questions in the case were:
1st. Of fact. Whether Hall was sane or insane, when he executed
the power of attorney.
2d. Of law. If he was insane, whether the instrument was void or
voidable only.
On this last point, the court below, having stated that the
presumption of law, generally speaking, was in favor of sanity, and
that whoever set up insanity was bound to prove it, said:
"If, at the time Hall executed the power in question, he was
insane, and his insanity was general,
the instrument was a
nullity,
Page 82 U. S. 15
and no title could be transferred under it. In that case,
the plaintiffs are entitled to a verdict. It matters not, if such
were the case, what consideration may have been paid to the
attorney, or with what good faith the parties may have purchased.
The instrument in such case is no more to be regarded as the act of
Hall than if he was dead at the time of its execution."
The jury found for the plaintiffs; thus finding that Hall was
insane.
The case was now here on error, the charge, as just mentioned,
as to the effect of insanity, if found, on the power of attorney,
being the great question in the case; assignments of error being
also made in regard to the question which the court allowed to be
put to Dr. Elliot, the medical expert, and to other matters of
evidence, and to the refusal of the court to direct the jury when
the plaintiffs first rested, that the verdict should be for the
defendants.
The case, on the great point of it -- the effect of an insanity,
which, after the verdict of the jury, was to be regarded, of
course, as admitted -- was interestingly argued and with a close
examination of the authorities.
Page 82 U. S. 20
MR. JUSTICE STRONG delivered the opinion of the Court.
The prominent question in this case is whether a power of
attorney executed by a lunatic is void, or whether it is only
voidable. The circuit court instructed the jury that a lunatic or
insane person, being of unsound mind, was incapable of executing a
contract, deed, power of attorney, or other instrument requiring
volition and understanding, and that a power of attorney executed
by an insane person or one of unsound mind was absolutely void. To
this instruction the defendant below excepted, and he has now
assigned it for error.
Looking at the subject in the light of reason, it is difficult
to perceive how one incapable of understanding and of acting in the
ordinary affairs of life can make an instrument the efficacy of
which consists in the fact that it expresses his intention, or,
more properly, his mental conclusions. The fundamental idea of a
contract is that it requires the assent of two minds. But a lunatic
or a person
non compos mentis has nothing which the law
recognizes as a mind, and it would seem therefore, upon principle,
that he cannot make a contract which may have any efficacy as such.
He is not amenable to the criminal laws, because he is incapable of
discriminating between that which is right and that which is wrong.
The government does not hold him responsible for acts injurious to
itself. Why then should one who has obtained from him that which
purports to be a contract be permitted to hold him bound by its
provisions, even until he
Page 82 U. S. 21
may choose to avoid it? If this may be, efficacy is given to a
form to which there has been no mental assent. A contract is made
without any agreement of minds. And as it plainly requires the
possession and exercise of reason quite as much to avoid a contract
as to make it, the contract of a person without mind has the same
effect as it would have had he been in full possession of ordinary
understanding. While he continues insane, he cannot avoid it, and
if therefore it is operative until avoided, the law affords a
lunatic no protection against himself. Yet a lunatic, equally with
an infant, is confessedly under the protection of courts of law as
well as courts of equity. The contracts of the latter, it is true,
are generally held to be only voidable (his power of attorney being
an exception). Unlike a lunatic, he is not destitute of reason. He
has mind, but it is immature, insufficient to justify his assuming
a binding obligation. And he may deny or avoid his contract at any
time, either during his minority or after he comes of age. This is
for him a sufficient protection. But as a lunatic cannot avoid a
contract, for want of mental capacity, he has no protection if his
contract is only voidable.
It must be admitted, however, that there are decisions which
have treated deeds and conveyances of idiots and lunatics as merely
voidable, and not void. In
Beverly's Case, [
Footnote 6] which was a bill for relief
against a bond made by Snow, a lunatic, it was resolved that every
deed, feoffment, or grant which any man
non compos mentis
makes is avoidable, and yet shall not be avoided by himself,
because it is a maxim of law that no man of full age shall be, in
any plea to be pleaded by him, received by the law to stultify
himself and disable his own person. A second reason given for the
rule was, "because when he recovers his memory, he cannot know what
he did when he was
non compos mentis." Neither of these
reasons is now accepted, and the maxim no longer exists. There were
other things ruled in
Beverly's Case, among which were
these: that the disability of a lunatic is
Page 82 U. S. 22
personal, extending only to the party himself, except that
extends to privies in tenure, as lord by escheat, and privies in
estate, as tenant in tail; but that privies in blood, as heirs or
privies in representation, as executors or administrators might
show the disability of the ancestor, or testator, or in testate. It
was also resolved that acts done in a court of record were not
avoidable even in equity. Lord Coke, in commenting on the case,
remarked that
"As to others, there is a great difference between an estate
made in person and by attorney, for if an idiot or
non compos
mentis makes a feoffment in fee in person and dies, his heir
within age, he shall not be in ward, or if he dies without heir the
land shall not escheat; . . . but if the feoffment is made by
letter of attorney, although the feoffor shall never avoid it, yet
after his death, as to all others, in judgment of law, the estate
is void, and therefore in such case, if his heir is within age, he
shall be in ward; or if he dies without heir, the land shall
escheat."
Such also is the rule as stated in Fitz Herbert's Natura
Brevium. [
Footnote 7] This is
plainly a recognition of the principle that the letter of attorney
of an idiot or lunatic is void, though he may not be permitted
himself to assert its nullity. His heir, and all others, may. The
doctrine is also asserted that as against the heirs of a lunatic
his deed is invalid, and this, we think, has been steadily
maintained in England.
In
Thompson v. Leach, reported in Carthew, [
Footnote 8] and in Comberbach,
[
Footnote 9] a clear
distinction was taken between the feoffment of a lunatic taking
effect by livery of seizin and his deed of bargain and sale, his
surrender, or grant. The former was held to be voidable only
because of the solemnity of the livery, while the latter were held
to be void. The case was ejectment brought by a lunatic's heirs,
and the controlling question was whether his deed was only
voidable, or whether it was absolutely void. The grantor had a life
estate upon which were dependent contingent remainders, and he made
a deed of surrender. If his deed was at any time effective before
the contingency happened, it merged
Page 82 U. S. 23
the tenancy for life and destroyed the contingent remainders,
and though the deed might afterwards be avoided by any means in
law, yet the contingent remainders, being once extinct, could not
be revived by any matter
ex post facto. It was necessary,
therefore, to determine whether the deed was a nullity or whether
it was good until avoided. The court resolved that the deed was
void
ab initio because of the grantor's lunacy. It was
said that
"there is a difference between a feoffment and livery made
propriis manibus of an infant and the bare execution of a
deed by sealing and delivery thereof, as in cases of grants,
surrenders, releases &c., which have their strength only by
executing them, and in which the formality of livery of seizin is
not so much regarded in the law, and therefore the feoffment is not
void, but voidable; but surrenders, grants &c., of an idiot are
void
ab initio."
The case is a leading one, and it is in some respects more fully
reported in Salkeld. [
Footnote
10] There, it appears not only that the distinction mentioned
is recognized, but that Holt, C.J., declared the deed of a person
non compos mentis to be void; that if he grants a rent and
the grantee distrains for arrears, he may bring trespass; that his
letter of attorney, or his bond, are void because, as he stated,
the law had appointed no act to be done for avoiding them.
Thompson v. Leach has never been disturbed, and, so far as
we know, has never been doubted. It was followed by the case of
Yates v. Boen, in Strange, [
Footnote 11] which was an action of debt upon articles.
The defendant pleaded "
non est factum," and offered to
give lunacy in evidence. Upon the authority of
Thompson v.
Leach and
Smith v. Carr, decided in 1728, the
evidence was received.
The doctrine of
Thompson v. Leach was asserted also in
Ball v. Mannin, [
Footnote 12] decided in the House of Lords in 1829. In
that case, the sole question presented was, by agreement of
counsel, whether the deed of a person
non compos mentis
was
invalid at law. In the inferior court, the judge had
charged the jury
Page 82 U. S. 24
that
"to constitute such unsoundness of mind as should avoid a deed
at law, the person executing such deed must be incapable of
understanding and acting in the ordinary affairs of life,"
and refused to charge that the unsoundness of mind must amount
to idiocy. The ruling was sustained by the Court of King's Bench in
Ireland, and, on writ of error, by the Exchequer Chamber. The case
was then removed to the House of Lords, and the judgment was
affirmed. It is therefore the settled law of England, and it has
been since the decision in
Thompson v. Leach, that while
the feoffment of an idiot or lunatic is only voidable, his deed,
and especially his power of attorney, are wholly void. And now, by
act of Parliament, 7th and 8th Vict., ch. 76, § 7, his conveyance
by feoffment, or other assurance, is placed on the same footing
with his release or grant.
Sir William Blackstone, it is true, appears to have overlooked
the distinction made in
Thompson v. Leach, and in his
Commentaries, [
Footnote 13]
while admitting that the law was otherwise prior to the reign of
Henry VI, asserted the doctrine that the conveyances of idiots and
persons of non sane memory, as well as of infants and persons under
duress, are voidable, but not actually void. But Sir Edward Sugden
[
Footnote 14] notices this
statement with disapproval. His remarks are as follows:
"When
Beverly's Case was decided, it was holden that
deeds executed by lunatics were voidable only, but not actually
void, and therefore they could only be set aside by special
pleading, and by the rule of law the party could not stultify
himself. And Mr. Justice Blackstone, following the old rule, has
laid down that deeds of lunatics are avoidable only, and not
actually void. But in
Thompson v. Leach, the distinction
was solemnly established that a feoffment with livery of seizin of
a lunatic, because of the solemnity of the livery, was voidable
only, but that a bargain and sale, or surrender &c., was
actually void. This, therefore, was the ground of the decision in
Yates v. Boen. When the Chief
Page 82 U. S. 25
Justice remembered that an innocent conveyance, or a deed, by a
lunatic was merely void, he instantly said that
non est
factum might be pleaded to it and the special matter be given
in evidence."
In this country, there has been inconsistency of decision. Some
courts have followed Mr. Justice Blackstone and
Beverly's
Case, without noticing the distinction made in
Leach v.
Thompson, Yates v. Boen, and other English cases. Such are the
decisions cited from New York, beginning with
Jackson v.
Gumaer [
Footnote 15]
and those relied upon made in other states. Nowhere, however, is it
held that the power of attorney of a lunatic, or any deed of his
which delegates authority but conveys no interest, is not wholly
void. And in Pennsylvania, in the
Estate of Sarah De
Silver, [
Footnote 16]
it was directly ruled that a lunatic's deed of bargain and sale is
absolutely null and void, and the distinction between his feoffment
and his deed was recognized. So also in
Rogers v. Walker,
[
Footnote 17] which was an
ejectment by a lunatic, it was held that a purchaser from her had
no equity to be reimbursed his purchase money, or the cost of
improvements, and Chief Justice Gibson said:
"Since the time of
Thompson v. Leach, [
Footnote 18] it has been held that a
lunatic's conveyance executed by sealing and delivery only is
absolutely void as to third parties, and why not void as to the
grantor? It was said to be so for the very unphilosophical reason
that the law does not allow him to stultify himself -- an early
absurdity of the common law which was exploded with us by
Bensell v. Chancellor. [
Footnote 19]"
The doctrine that a lunatic's power of attorney is void finds
confirmation in the analogy there is between the situation and acts
of infants and lunatics. Both such classes of persons are regarded
as under the protection of the law. But as already remarked, a
lunatic needs more protection than a minor. The latter is presumed
to lack sufficient discretion. Reason is wanting in degree. With a
lunatic, it is wanting altogether. Yet it is universally held, as
laid down by Lord Mansfield in
Zouch v. Parsons, [
Footnote 20] that deeds of an
infant
Page 82 U. S. 26
which do not take effect by delivery of his hand (in which class
he places a letter of attorney), are void. We are not aware that
any different rule exists in England or in this country. It has
repeatedly been determined that a power of attorney made by an
infant is void. [
Footnote
21] So it has been decided in Ohio, [
Footnote 22] in Kentucky, [
Footnote 23] in Massachusetts, [
Footnote 24] and in New York. [
Footnote 25] In fact, we know no case of
authority in which the letter of attorney of either an infant or a
lunatic has been held merely voidable.
It must therefore be concluded that the circuit court was not in
error in instructing the jury that a power of attorney executed by
an insane person, or one of unsound mind, is absolutely void.
This disposes of the only serious question in the case. There
are other assignments of error, but they may be dismissed with
brief notice. The only one which has any plausibility and which
needs particular notice is that which complains of the refusal of
the court to permit a medical witness to give his opinion
respecting the sanity of John Hall at the time when he signed the
power of attorney, basing his opinion upon the facts and symptoms
stated in the depositions read at the trial. The witness was,
however, allowed to give his opinion upon the testimony adduced by
the plaintiffs. The record does not show fully what were the facts
stated in the depositions, nor whether they were established by
uncontradicted evidence. It may be, therefore, that, by the form in
which the question was put, the witness was required not merely to
give his opinion upon facts, but to ascertain and determine what
the facts were. This, of course, was inadmissible. The rule is, as
laid down in Greenleaf's Evidence, [
Footnote 26]
"If the facts are doubtful and remain to be found by the jury,
it has been held improper to ask an expert who has heard the
evidence what is his opinion
Page 82 U. S. 27
upon the case on trial, though he may be asked his opinion upon
a similar case hypothetically stated. [
Footnote 27]"
The question asked was:
"From the facts stated in these depositions and the symptoms
stated, what in your opinion was the state of John Hall's mind on
December 27, 1852, as to sanity or insanity?"
It was to this the plaintiffs objected. But the witness gave his
opinion, founded on all the testimony adduced by the plaintiffs
tending to show insanity, and that opinion was that Hall was
capable of doing business and of executing a power of attorney. He
could have said no more had he been allowed to consider the
evidence given by the defendants as well as that given by the
plaintiffs. The defendants therefore received no possible injury
from the ruling of the court. Hence this assignment cannot be
sustained.
There remains one other exception to be considered, for the
proper understanding of which reference must be made to the
plaintiffs' title. [
Footnote
28]
That the grants and confirmations relied on by the plaintiffs
were effectual to vest in Hall the title to the land in dispute
admits of no question, and it is not denied by the plaintiff in
error. He claimed under Hall. But when this title had been given in
evidence by the plaintiffs below, with proof that they were the
children and heirs of Hall, and when they had rested in chief, the
defendants asked the court to direct a verdict in their favor for
the reason, among others, that under the state statute of March 5,
1864, it was incumbent upon the plaintiffs, inasmuch as their
action had not been commenced within a year after its passage, to
show an actual possession in themselves or their ancestors within
five years next before the commencement of the action, which they
had failed to do. The court refused the direction, and correctly.
At the time when the request was made, it did not appear that the
actual possession of the land had
Page 82 U. S. 28
not been enjoyed by the plaintiffs within five years next before
the action was brought, and therefore they were presumed to have
had such possession in the absence of evidence of an adverse
possession, and no such evidence has been given. The 9th section of
the act of April 22, 1850, which defined the time for commencing
civil actions, expressly declares that in every action for the
recovery of real property, such a presumption shall be made in
favor of one establishing a legal title. In addition to this, three
of the plaintiffs were minors when the title descended to them, and
continued minors until within less than five years before the suit
was brought, and one was a minor until 1872. The period of their
disability was therefore not to be included in the statutory period
of limitation.
It is probable that when the request to direct a verdict for the
defendants was made, the supplementary act of April 4, 1864, was
overlooked. Certainly it has not been argued here that the
plaintiffs below were affected by the act of March 5 of that year.
But it is claimed the plaintiffs were barred by the statute of
limitations of 1855. That, however, is not before us. The circuit
court was asked to give no instruction in regard to it, and none
was given. Besides, so far as the record exhibits, there was no
evidence of continued adverse possession during the five years next
preceding the commencement of the suit.
There is nothing more in the case that requires particular
notice; nothing which would justify our awarding a new trial.
Judgment affirmed.
[
Footnote 1]
Statutes of California, A.D. 1850, p. 343.
[
Footnote 2]
Statutes of California, A.D. 1863-4, p. 149.
[
Footnote 3]
Supra, p.
82 U. S. 11.
[
Footnote 4]
Statutes of California, A.D. 1863-4, p. 435.
[
Footnote 5]
Id., A.D. 1855, p. 109.
[
Footnote 6]
4 Reports 123,
b.
[
Footnote 7]
202, c.
[
Footnote 8]
Page 435.
[
Footnote 9]
Page 469.
[
Footnote 10]
Vol. 3, page 300;
see also 2 Ventris 198.
[
Footnote 11]
Vol. 2, p. 1104.
[
Footnote 12]
1 Dow & Clark 380.
[
Footnote 13]
Book 2, page 291.
[
Footnote 14]
1 Sugden on Powers 179;
see also Shelford on Lunatics
257-259.
[
Footnote 15]
2 Cowen 552.
[
Footnote 16]
5 Rawle 111.
[
Footnote 17]
6 Pa.St. 371.
[
Footnote 18]
Carthew 435.
[
Footnote 19]
5 Wharton 371.
[
Footnote 20]
3 Burrow 1805.
[
Footnote 21]
Saunderson v. Marr, 1 Henry Blackstone 75; 2 Lilly,
Abridgment, 69; 1 American Leading Cases 248-259.
[
Footnote 22]
Lawrence v. McArter, 10 Ohio, 37.
[
Footnote 23]
Pyle v. Cravens, 4 Littell 17
[
Footnote 24]
Whitney v. Dutch, 14 Mass. 462.
[
Footnote 25]
Fonda v. Van Horne, 15 Wendell 636.
[
Footnote 26]
§ 440.
[
Footnote 27]
Sills v. Brown, 9 Carrington & Payne 601.
[
Footnote 28]
See the statement of the title,
supra, pp.
82 U. S. 10-11.
The learned judge recapitulated it in nearly the same words as
there given.
