
    WILLIAM A. GILLESPIE v. JACOB SHULIBERRIER.
    Where, in the course of a long investigation, a point, upon which the Court had been requested to charge, was forgotten, but at the end of his charge, his Honor asked the counsel, on both sides, if there was any other matter upon which they wished instructions, who both answered in the negative, the omission was Held not to bo a good ground of exception.
    Whore it was proved that the defendant, for some time previously, was depressed and low spirited, and affected by a monomania or insane delusion that his lands were wearing- out and his plantation and buildings going to ruin and that he was threatened with starvation and the poor-house, it was Held that this was not such a state of lunacy as to throw upon the other side the onus of showing that the act was done in a lucid state of mind.
    ActioN of COVENANT, triol before Peeson, J., at the last Pali Term of Iredell Superior Court.
    The action was constituted, under the direction of the Supreme Court upon a covenant to make title to a tract of land, entered into by the defendant on the 8th day of Oct., 1853, and the only question was whether the defendant was compos mentis, and had capacity to enter into the said contract at the time of its execution.
    The evidence of about fifty witnesses was before the Court and jury; that of the defendant tending to show that early in the summer of 1853, and up to and after the 8th of October of that year, his mind had been greatly impaired and disturbed, so much so as to render him incapable of making a contract, and particularly that he was affected by a monomania or insane delusion, to the effect that his land was wearing out, his plantation and buildings going to ruin, and that unless he sold his land and moved away, his family would be reduced to starvation, and have to go to the poor-house; while in truth his land was of superior quality, his farm and buildings in good order, and his farming operations prosperous, affording ample support for his family and something to spare. Several witnesses gave it as their opinion that he was a lunatic in the year 1853.
    The evidence of the plaintiff tended to show that the defendant, although depressed and low spirited, had capacity to make a contract, and particularly the subscribing witness to the covenant sued on, and others who were present at its execution, and who represented him at that time as entirely compos mentis, and able to know what he was about.
    The defendant’s counsel, amongst other things, requested the Court to instruct the jury that, although the burden of proof was upon the defendant, to show that he was incompetent at the very instant 'when the contract was made, yet, if he had succeeded in showing lunacy or general insanit}1' during the preceding summer, the law presumed a continuance of that state of mind, until the contrary was proved.
    The Court did not give the instruction as prayed, or any instructions at all in reply to the prayer, not recollecting, when the charge was given, that any such request had been made, and there was no dispute between the counsel at the bar as to the law.
    After calling the attention of the jury to the question, the Court proceeded in substance as follows: “ The law presumes every man compos mentis, and capable of making a contract, until the contrary is proved. So you begin your investigation with this assumption, and it devolves upon the defendant who alleges a want of capacity to prove it. This he has undertaken to do, by showing the state of his mind both before and after the 8th of October, 1853. Want of capacity proceeding from nnsonndness of mind, is of three kinds, known as general insanity, lunacy and monomania. General insanity affects the whole mind — is permanent in its character, and continues without any lucid intervals. Lunacy is supposed to have some connection with the changes of the moon, and exists when a man is sometimes rational and sometimes deranged; and although a man may be a lunatic in this sense before doing an act, the law presumes him capable when the act is done, unless the contrary is proved. Monomania is a species of insanity and differs from it only in being confined to a particular faculty of the mind, or existing in reference to a particular subject.”
    “ The being compos mentis, or having a legal capacity, is to possess such mind as enables a person to know what he is about. "What then was the defendant about ? He was about making the contract to sell a tract of land. Then he must be able to know the ingredients of that contract, such as, that he is the owner of the land, is willing to sell it for a given price, and that in consideration of that price, he enters into an agreement which obliges him to make title to the purchaser. It is not required that a man should have sense enough to make a prudent trade, but the law does require that every contract shall have the rational assent of his mind, be it a strong or a weak one. If, therefore, the jury shall be satisfied that the defendant was laboring under an insane delusion of mind, that he must sell his land to save his family from want and the poor-house, and acting under the influence of this delusion, he entered into the contract, it would not be binding upon him, because he would not then know what he was about in respect to a rational assent to the contract, his assent being the result of insanity.”
    After concluding the charge, the Court addressed the counsel, and asked if there was any other matter, upon which they wished the jury to have instructions, and they, on both sides, signified there was not.
    
      The jury returned a verdict in favor of the plaintiff, to wit, that the defendant was compos mentis.
    
    The defendant’s counsel excepted for error in not charging as requested, and for error in the charge given, and his exceptions are, upon appeal, brought to this Court.
    
      Boy den and Fleming, for the plaintiff.
    
      J. E. Kerr, for the defendant.
   Battle, J.

Upon consideration of the bill of exceptions, taken as a whole, and comparing one part with another, we are satisfied that there is nothing in it which would justify us in setting aside the verdict of the jury, and awarding a venire de novo.

The only exceptions upon which the defendant’s counsel insisted are, that the presiding Judge erred, first, in declining to give the jury a proper instruction which was asked ; and, secondly, in giving them an improper instruction.

The first error, if there was one, was- clearly waived by the counsel, and cannot be insisted upon.'

The case states that his Honor did not give the instruction asked, or auy instruction at that time, and that he forgot it when he came to charge the jury, after the testimony and the arguments of the counsel were closed. But after he had finished his charge to the jury, he turned to the counsel on both sides and asked them, “ if there was any other matter upon which they wished the jury to have instruction, and they, on both sides, signified there was not.”

It is not stated how long the trial lasted, but it does appear that about fifty witnesses were examined, and it is not at all surprising that when he came to charge the jury, his Honor should, for the moment, have forgotten the instruction prayed; and as he asked the counsel on both sides, whether there was any thing else to which they wished him to call to the attention of the jury, it must certainly be regarded as a waiver of all previous matters when they told him, or signified to him, that there was not.

The second alleged error is equally unfounded. It is that his Honor told the jury, !< that lunacy exists when a man is sometimes rational, and sometimes deranged ; and although a man may be a lunatic, in this sense, before doing an act, the law presumes him capable when the act is done, unless the contrary is proved.” The counsel-contends that there was some testimony tending to prove that the defendant was a lunatic in the year 1853, in the latter part of .which, the contract in question was entered into; that the law presumed that he continued to be so when the contract was made, and the burden of proof was on the plaintiff and not the defendant, to show a lucid interval at that time ; and for this position, he cites the case of Cartwright v. Cartwright, 1 Phil. Eccl. Rep. 110, (see also Stock on Non Compotes, 25 Law Lib. 28.)

It might be difficult to answer this objection, were it not also set forth in the bill of exceptions, that “ there was no dispute between the counsel at the bar as to the law.”

"We can reconcile this apparent discrepancy only by supposing, that though “ several witnesses gave it as their opinion, that he (the defendant) was a lunatic in the year 1853,” yet in truth, they meant nothing more by the term “ lunatic,” than that he was, as all the other witnesses testified, “ depressed and low sjDirited,” and that £: he was affected by a monomania, or insane delusion, to the effect that his land was wearing out, and his plantation and buildings going to ruin, and that unless he sold his land and moved away, his family would be reduced to starvation and have to go to the poorhouse;” all of which was untrue. Upon the testimony thus understood, the proper enquiry was, whether he was competent to make a binding contract, when he entered into that upon which the suit was brought. That question was fairly submitted by his Honor to the jury, with such rem.arks as the nature of the testimony required, and we see no reason for disturbing the verdict which they found.

The judgment of the Court (after refusing to set asiffe th,e yerdict and grant a new trial) against the defendant, for the costs of the action, is affirmed.

PeR Cueiam, Judgment affirmed.  