Bell, C. J.
Where new facts or new evidence have been discovered after the hearing, which might probably change the decision, and before the final decree is entered, the case may be reheard upon petition, and the decree reversed, modified or corrected. The petition should set forth the case, and the proceedings in it; the new facts or evidence, and when discovered; and that it was unknown at the hearing, and could not have been known by the exercise of reasonable diligence. Notice of the application must be duly given to the adverse party; and it must be fully supported by affidavits, which may be met by counter affidavits. 3 Dan. Ch. Pr. 1615, 1722; Story Eq. Pl., sec. 421.
In England, it is enough to show that the facts or evidence were unknown at the time of publication. Here, from the difference of our practice, it must be shown that they were unknown at the hearing, since, upon application, leave would be granted to take further evidence till the hearing, in -any case where the want of the evidence would justify a rehearing.
In cases of application for a new trial at law, a new trial will not be granted, where the party or his counsel knew, or ought to have known, the existence of the evidence before the trial was closed. Negligence is reckoned equivalent to knowledge. The party will be taken to have known what, by the exercise of proper diligence, he ought to have known. And the same rule is held on applications for a rehearing in equity. 3 Dan. Ch. Pr. 1733, 1734; Story Eq. Pl., secs. 413, 414.
A rehearing will not be granted on account of the discovery of new evidence upon new matter, nor because the importance of the testimony has only been discovered since the decision, if the party had it in his power to ascertain its importance before the hearing, and has neglected to do so, and to obtain the testimony; nor where the newly discovered evidence is merely cumulative upon the litigated facts already in issue; nor for the purpose of contradicting or discrediting a witness examined by the adverse party; nor on account of any error of judgment or mistake of law by'counsel. 3 Dan. Ch. Pr. 1623, &c.; Story Eq. Pl., secs. 413, 414.
"We have not deemed it necessary to consider whether any of these principles would stand in the way of a rehearing in this case, because, upon a car.eful examination of the evidence, we think it does not lay a foundation for a rehearing.
We remark that the affidavits are generally written by counsel, and are more strongly expressed than the depositions of the same witnesses used upon the hearing. Such evidence is less satisfactory than if taken by a disinterested person. As affidavits thus taken [536] can not be used upon a rehearing, this mode of taking the evidence is attended with delay, expense and labor, both for the court and counsel. The testimony is to be twice taken and twice considered. We think, therefore, it would be a reasonable and judicious course, in such cases, to apply to the court or a judge for an order that the evidence should be taken before a commissioner, upon notice, as depositions, and that it may be used upon the rehearing.
The new evidence is much of it from the same witnesses whose testimony was used at the hearing, but additional statements of particular facts are found, designed to give weight to the opinions, which, in the case of unprofessional witnesses, would pass for little without them.
All the facts presented in the affidavits are analyzed and grouped in the able opinion of Dr. Bancroft in his affidavit; and they seem to us to have, to a great extent, the weight he has assigned to them. His examination of the evidence, which he justly characterizes as being often vague and as presenting but a small number of facts, and, we may add, those facts not often bearing very directly upon the time of the execution of this deed, seems to us, in the main, fair and reasonable. He infers from the symptoms of bodily disease, commencing fifteen or twenty years before Mr. Dennett’s death, and progressing steadily to a fatal termination, that he was affected by disease of the brain. He states the opinion that from such disease of that organ there is great probability that the mind must be impaired ; and he then brings together the particular facts stated by the witnesses relative to his condition of mind, and draws from them the conclusion that Mark Dennett’s mind was seriously impaired by the disease under which he suffered.
In this conclusion we can readily agree with Dr. Bancroft; and we notice but few particulars in his discussion of the evidence which are not satisfactory. He leaves out of the account the evidence relative to the intemperate habits of Mr. Dennett, which, if too slight to have produced or aggravated the symptoms of disease, yet might have a very important bearing upon some of the facts testified by the witnesses, indicating derangement of the mind. The strange statement Mr. Dennett is said to have made, that he was the most perfect man, &c., would not be so strange in the mouth of a drunken man. Dr. Bancroft perhaps regarded the evidence on this point as too slightly connected with the proof of that statement to deserve great consideration.
Some weight is attached to the evidence that the character of Mr. Dennett changed after his first attack of illness. From being enterprising and prosperous he became remiss, made bad bargains, did not look sharply after his interest, and managed his farm badly, and that he was childish and pleased with trifles. As such changes of character are seen to result from various causes, independent of insanity, as from general ill health, from want of success and consequent discouragement, from domestic troubles, from intemperance, and from indolence, we should perhaps attribute less weight to this evidence than Dr. Bancroft seems to have done.
But Dr. Bancroft’s conclusions do not reach the material point in [537] this case. The powers of the mind may be impaired in various ways and in various degrees. It is not every degree of mental disease or derangement that destroys the legal capacity to dispose of property. Re Morgan, 7 Paige 237. Such derangement may vary through an infinite number of degrees, from eccentricity or dullness to furious madness or utter imbecility. Shelf. Lun. 37. In the closing remark of Dr. Bancroft’s affidavit he expresses the opinion that Mark Dennett was in a state of dementia during the latter years of his life, produced by disease of the brain. The affidavit contains little, either of fact or argument, tending the show a state of dementia, if we understand that term to express such complete prostration of the mental powers as to render the sufferer incapable of transacting business; and we must therefore understand the term dementia, as here used, as indicating an impaired state of the mental powers, a feebleness of mind caused by disease, and not accompanied by delusion or uncontrollable impulse, without defining the degree of incapacity. Such feebleness or impaired condition it seems the whole drift of the previous parts of the deposition to show.
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Bell, C. J.
Where new facts or new evidence have been discovered after the hearing, which might probably change the decision, and before the final decree is entered, the case may be reheard upon petition, and the decree reversed, modified or corrected. The petition should set forth the case, and the proceedings in it; the new facts or evidence, and when discovered; and that it was unknown at the hearing, and could not have been known by the exercise of reasonable diligence. Notice of the application must be duly given to the adverse party; and it must be fully supported by affidavits, which may be met by counter affidavits. 3 Dan. Ch. Pr. 1615, 1722; Story Eq. Pl., sec. 421.
In England, it is enough to show that the facts or evidence were unknown at the time of publication. Here, from the difference of our practice, it must be shown that they were unknown at the hearing, since, upon application, leave would be granted to take further evidence till the hearing, in -any case where the want of the evidence would justify a rehearing.
In cases of application for a new trial at law, a new trial will not be granted, where the party or his counsel knew, or ought to have known, the existence of the evidence before the trial was closed. Negligence is reckoned equivalent to knowledge. The party will be taken to have known what, by the exercise of proper diligence, he ought to have known. And the same rule is held on applications for a rehearing in equity. 3 Dan. Ch. Pr. 1733, 1734; Story Eq. Pl., secs. 413, 414.
A rehearing will not be granted on account of the discovery of new evidence upon new matter, nor because the importance of the testimony has only been discovered since the decision, if the party had it in his power to ascertain its importance before the hearing, and has neglected to do so, and to obtain the testimony; nor where the newly discovered evidence is merely cumulative upon the litigated facts already in issue; nor for the purpose of contradicting or discrediting a witness examined by the adverse party; nor on account of any error of judgment or mistake of law by'counsel. 3 Dan. Ch. Pr. 1623, &c.; Story Eq. Pl., secs. 413, 414.
"We have not deemed it necessary to consider whether any of these principles would stand in the way of a rehearing in this case, because, upon a car.eful examination of the evidence, we think it does not lay a foundation for a rehearing.
We remark that the affidavits are generally written by counsel, and are more strongly expressed than the depositions of the same witnesses used upon the hearing. Such evidence is less satisfactory than if taken by a disinterested person. As affidavits thus taken [536] can not be used upon a rehearing, this mode of taking the evidence is attended with delay, expense and labor, both for the court and counsel. The testimony is to be twice taken and twice considered. We think, therefore, it would be a reasonable and judicious course, in such cases, to apply to the court or a judge for an order that the evidence should be taken before a commissioner, upon notice, as depositions, and that it may be used upon the rehearing.
The new evidence is much of it from the same witnesses whose testimony was used at the hearing, but additional statements of particular facts are found, designed to give weight to the opinions, which, in the case of unprofessional witnesses, would pass for little without them.
All the facts presented in the affidavits are analyzed and grouped in the able opinion of Dr. Bancroft in his affidavit; and they seem to us to have, to a great extent, the weight he has assigned to them. His examination of the evidence, which he justly characterizes as being often vague and as presenting but a small number of facts, and, we may add, those facts not often bearing very directly upon the time of the execution of this deed, seems to us, in the main, fair and reasonable. He infers from the symptoms of bodily disease, commencing fifteen or twenty years before Mr. Dennett’s death, and progressing steadily to a fatal termination, that he was affected by disease of the brain. He states the opinion that from such disease of that organ there is great probability that the mind must be impaired ; and he then brings together the particular facts stated by the witnesses relative to his condition of mind, and draws from them the conclusion that Mark Dennett’s mind was seriously impaired by the disease under which he suffered.
In this conclusion we can readily agree with Dr. Bancroft; and we notice but few particulars in his discussion of the evidence which are not satisfactory. He leaves out of the account the evidence relative to the intemperate habits of Mr. Dennett, which, if too slight to have produced or aggravated the symptoms of disease, yet might have a very important bearing upon some of the facts testified by the witnesses, indicating derangement of the mind. The strange statement Mr. Dennett is said to have made, that he was the most perfect man, &c., would not be so strange in the mouth of a drunken man. Dr. Bancroft perhaps regarded the evidence on this point as too slightly connected with the proof of that statement to deserve great consideration.
Some weight is attached to the evidence that the character of Mr. Dennett changed after his first attack of illness. From being enterprising and prosperous he became remiss, made bad bargains, did not look sharply after his interest, and managed his farm badly, and that he was childish and pleased with trifles. As such changes of character are seen to result from various causes, independent of insanity, as from general ill health, from want of success and consequent discouragement, from domestic troubles, from intemperance, and from indolence, we should perhaps attribute less weight to this evidence than Dr. Bancroft seems to have done.
But Dr. Bancroft’s conclusions do not reach the material point in [537] this case. The powers of the mind may be impaired in various ways and in various degrees. It is not every degree of mental disease or derangement that destroys the legal capacity to dispose of property. Re Morgan, 7 Paige 237. Such derangement may vary through an infinite number of degrees, from eccentricity or dullness to furious madness or utter imbecility. Shelf. Lun. 37. In the closing remark of Dr. Bancroft’s affidavit he expresses the opinion that Mark Dennett was in a state of dementia during the latter years of his life, produced by disease of the brain. The affidavit contains little, either of fact or argument, tending the show a state of dementia, if we understand that term to express such complete prostration of the mental powers as to render the sufferer incapable of transacting business; and we must therefore understand the term dementia, as here used, as indicating an impaired state of the mental powers, a feebleness of mind caused by disease, and not accompanied by delusion or uncontrollable impulse, without defining the degree of incapacity. Such feebleness or impaired condition it seems the whole drift of the previous parts of the deposition to show.
We have not been able to discover that any line is drawn by medical experts between weakness of mind and dementia; and we trace no indication of such line drawn with any reference to the capacity to transact business. Indeed, it seems not an uncommon opinion of medical men and others, that if insanity is clearly proved to exist in any degree, the party can no longer be safely regarded as capable of transacting any business. Wh. & St. Med. Jur. 20; Waring v. Waring, 6 Moore P. C. 349. We are unable to adopt this opinion, because we think there is abundant evidence that the species of insanity called monomania maybe limited to certain subjects; as, for instance, to the health of the sufferer, without sensibly affecting the general capacity in other respects; Wh. & St. Med. Jur., sec. 42; and that the mind and memory may be greatly impaired, and yet the person be capable of disposing of property, where there has been no fraud or undue influence.
In former times it was held — and that seems to be the received doctrine in some courts quite recently — that “non compos mentis” is one “ that by sickness, grief, or other accident, wholly loseth his understanding”; Beverly’s Case, 4 Co. 123; Co. Litt. 247, a; that u the terms non compos mentis, of unsound mind, are legal terms, and import a total deprivation of sense” ; 2 Mad. Ch. 727; and that to invalidate a deed it must be shown that the grantor was non compos mentis within the legal acceptation of the term; that it was not a partial but an entire loss of the understanding ; for the common law seemed not to have drawn any discriminating line by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it. Jackson v. King, 4 Cow. 216 ; Blanchard v. Nestle, 4 Denio 41.
This view of the law we do not understand to prevail here, but the truth is held to lie between these extremes. Every person is to 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. [538] Re Baker, 2 Johns. Ch. 232; see 1 Paige 173 ; 21 Vt. 170. When it appears that a grantor had not strength of mind and reason to understand the nature and consequences of his act in making a deed, it may be avoided on the ground of insanity. Davies v. Grindley, Shelf. Lun. 266. A man, by the bare execution of an instrument, does not make it his deed, if at the time he was so weak in mind as to be incapable of understanding it if explained to him. Mannin v. Ball, 1 Sm. & Batt. 185 ; S. C., 1 Dow P. C. (N. S.) 381; 1 Bligh. N. S. 1. All that the law requires to make a deed effectual is that a man should have possession of his reason, so as to know the effect of the act he is about to perform, and to be capable of carrying that act into effect. Creagh v. Blood, 2 Jones & Lat. 509.
The question, then, in all cases where incapacity to contract, from defect of mind, is alleged, is not whether a person’s mind is impaired, nor if he is afflicted by any form of insanity, but whether the powers of his mind have been so far affected by his disease as to render him incapable of transacting business like that in question. An impaired condition of the mental powers, such as may be inferred by the medical expert, may constitute mere weakness of mind, or a complete prostration of the faculties. Wh. & St. Med. Jur., sec. 74. In the last case there may be no delusive impression, nor false assumption of fact, nor confused hurry of mind, nor uncontrollable impulses, such as characterize ordinary insanity; but the mind is inert, the memory is unable to recall and the mind to retain in one view all the facts upon which the judgment is to be formed for so long a time as may be required for their due consideration. Converse v. Converse, 21 Vt. 168. Such weakness maybe the sudden result of disease, as in cases of paralysis, but is generally more or less gradual in its approach, scarcely perceptible at first, and becoming more apparent with the lapse of time and increasing disease. No marked line can be drawn at which weakness of mind becomes so great that the party ceases to be capable of binding himself by his contract or conveyance. The judicial investigations of insanity are therefore for the most part confined to the inquiry, whether such a state of insanity exists as actually disqualifies the person from conducting himself consistently with the personal safety of himself and others, or from managing and disposing of his own affairs and property.
Weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions. If a man be legally compos mentis, he is the disposer of his own property, and his will stands for the reason of his actions. Ormond v. Fitzroy, 3 P. W. 129; Shelf. Lun. 37. But it is held that though weakness of understanding is insufficient to avoid a deed, it furnishes ground of suspicion of improper influence, and therefore, wherever fraud can be inferred from the circumstances of the transaction, equity will interpose to relieve against it. Jackson v. King, 4 Cow. 216.
The doubtful and uncertain point at which the disposing mind disappears and where incapacity begins, can be ascertained only by an examination of the particular cix-cumstances of each case, to be [539] duly weighed and considered by the court or jury; and in determining the question the common sense and good judgment of the tribunal must be mainly relied on.
As the law presumes every man to be sane — Pettes v. Bingham, 10 N. H. 514 — the burden of proof is on the party who asserts the want of capacity; and we think the evidence, giving all due weight to the medical testimony, falls short of showing incapacity. It appears that Mr. Dennett was the owner of a farm and the head of a family. During the whole time embraced in the evidence till the deed in question, there is nothing to show that, in the intervals of the attacks of his disease, he did not transact all the business naturally to be done by one so situated. There is no evidence that his business was done by others, or that he had any difficulty in transacting his business because of any suspicion of insanity or incapacity ; and with the exception of what is said in regard to his sales of timber, there is no evidence that his bargains are those of an insane, foolish or broken down man. "When we look at the evidence produced, in comparison with what must necessarily exist if the defendant’s positions are correct, we can hardly doubt that though Mr. Dennett’s powers were impaired, he .had still capacity for the transaction of ordinary business.
The evidence tending to raise a suspicion of fraud or imposition upon a man of enfeebled intellect, which is a fact to be proved by him who asserts it, is quite too slight to justify a rehearing.
Petition dismissed.