
    Frederic Oliver versus Joseph Berry.
    Persons deaf and dumb are prima facie non compos mentis ; and the statute of limitations does not run against them, unless they are shown to possess sufficient intelligence to know and comprehend their legal rights and liabilities.
    Assumpsit on a promissory note given to the plaintiff for his personal labor in the defendant’s saw mill. Defence,— statute of limitations. The plaintiff was proved to have been deaf and dumb from infancy. He was able to labor, but no evidence was offered to prove that he possessed sufficient intelligence to know and comprehend his legal rights and liabilities. There was evidence tending to prove that the defendant had made payments upon the note in suit within six years before the action was commenced; but the jury returned a verdict for the defendant, and the plaintiff’s counsel moved to have the verdict set aside as against evidence.
    
      Gilbert, for the plaintiff.
    
      Tallman & Larrabee, for the defendant.
   Walton, J.

The statute of limitations does not run against a person deaf, and dumb, unless he is shown to possess sufficient intelligence to know and comprehend his legal rights and liabilities. The improved method of educating such persons, adopted at the present day, develops in them a higher degree of intelligence than it was formerly supposed they possessed; but, nevertheless, as the want of hearing and speech must necessarily prevent a full development of their intellectual powers, and place them at a great disadvantage in their dealings with others, the law throws around them for their protection the presumption of incapacity to manage their own affairs till the contrary is shown. This presumption, however, is not conclusive; it maybe rebutted. But when a person is shown to have been deaf and dumb from his birth, it is prima facie evidence of incompetency, and unless rebutted must be regarded as establishing it. Such seems to have been the rule of the common law from a very early date. Brower v. Fisher, 4 Johns. Ch., 441. In this case, Chancellor Eest says that, the presumption is a reasonable one, and that a special examination to repel the inference of imbecility seems always to have been required. Lord Hals refers to the laws of King Alfred as recognizing the doctrine. 1 Hale, P. C., 34. The same rule prevails in the civil law. Justinian’s Inst., lib. 1 tit. 23, § 4. See also 1 Greenl. on Ev., § 366, and 2 Kent’s Com., 452, (Little & Brown’s Ed. 609,) and authorities there cited.

The plaintiff’s right to recover in this action seems to have been fully established, unless it was barred by the statute of limitations. The statute of limitations does not apply to an insane person, (R. S., c. 81, § 100,) and the words '"insane person,” as there used, are declared to be applicable to a person idiotic, or non compos mentis, (R. S., c. 1, § 4, rule 8,) which, as we have already seen, a person deaf and dumb is prima facie presumed to be. The plaintiff was shown to have been deaf and dumb from his infancy, and no evidence was offered to show that ho possessed sufficient intelligence to know and comprehend his legal rights and liabilities, and thereby rebut the legal presumption of incapacity. The evidence of payments within six years was very strong, and it is difficult to understand why it did not satisfy the jury of the fact. The Court is of opinion that the verdict was clearly wrong.

Verdict set aside. —New trial granted.

Appleton, C. J., Cutting, Dickerson, Barrows and Danforth, JJ., concurred.  