By the Court.
Nisbet, J.
delivering the opinion.
[291] [1.] The defendant in this case relied upon a bill of sale from the plaintiff’s intestate. The plaintiff attacked that bill of sale upon two grounds, to-wit: the insanity of the maker, his intestate, and undue and improper influence exerted upon him, amounting to moral coercion, by Foster, the defendant. Upon the trial, Judge Hill permitted the plaintiff to prove the insanity of the intestate, by giving in evidence the public opinion and reputation of the neighborhood, in relation to his insanity. Such testimony, for example, as this: “ he was esteemed an idiot in Oglethorpe County.” Exception was taken to the admission of this evidence, at the trial. We think the Circuit Judge erred in admitting it.
Insanity may be proven, by the proof of facts and circumstances, which show the state and condition of the mind. “ The state and condition of the mind (says Prof. Greenleaf) of the party, is proved like other facts, to the Jury.” Insanity, a state or condition of the mind which renders a party incapable of contracting, and which, when proven, annuls a contract, is demonstrable by facts and circumstances, which show it to exist — such as his acts, his sayings, and his appearance. The best evidence of which the nature of the case is susceptible, must in all cases be adduced. The best evidence to prove insanity is proof of the facts and circumstances which demonstrate its existence. These facts and circumstances,must be proven by the production of witnesses to testify to them. They are capable of proof, as are any other facts or circumstances, which are required to be proven, and upon which the rights of parties depend in a Court of justice. The highest and best evidence in this case, is the testinjony of persons who, from their own knowledge, will swear to their existence.
Public opinion, as to a man’s insanity, is hearsay evidence. One swearing to the existence of such opinion or reputation, swears only to what he has heard from others — from a whole community, if you please. He swears to tío facts which show to the Jury the state or condition of the party’s mind. He swears to what others have said. From such testimony, the Jury who are to try the question of sanity, derive nothing upon which to base a judgment of their own. If, upon such evidence, they were allowed to find a verdict, it would be predicated alone upon the opinion of other men, not expressed to them, not upon oath, not subject to cross examination, and communicated through one who may have erroneously conceived it, or presented it, or who may [292] himself be prejudiced by it. He is not guilty of perjury if the party be ever so sane. He is testifying only to the existence of a public opinion — a thing very difficult to define — which may be one thing to-day and another to-morrow — which may exist without reason, or facts, or knowledge, and may be changed in a week without reason or cause. And in addition to all this, the witness who is sworn, is the judge of what is public opinion or reputation, and that too, under circumstances which relieve him of much of that responsibility which ordinarily attaches to the delivery of testimony on oath.
“If,” says BuTler, “the first speech were without oath, another oath that there was such speech, makes it no more than a bare speaking, and so of no value in a Court of Justice.” BuTler, N. P. 294. And that is all that can be said of it. Against all such testimony, the law sets its face as a flint. “Hearsay evidence is uniformly held incompetent to establish any specific fact, which in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge.” 1 Greenl. sec. 99. Now, insanity, if not a specific fact, is a state or condition of the mind. And as men cannot see, touch, hear, and with omniscient ken, determine the state or condition of the mind — as intuition cannot establish it — they are left to ascertain it, by facts and circumstances. And when it becomes necessary for a Jury to determine it, they too are to judge through facts and circumstances; and the facts and circumstances upon which they are to place their judgment, must be presented to them by witnesses under oath. If reputation of insanity is competent, then reputation of sanity must be also. By this kind of evidence a fool may be proved a wise man, and a philosopher a fool. Public opinion declared Copernicus a fool, when he promulgated the planetary system; and Columibus a fool when he announced the sublime idea of a New World. Hazardous in the extreme would it be to the rights of parties under the law, if they were allowed to depend upon the opinion of a neighborhood of the sanity of individuals. Hearsay evidence is excluded, because a witness ought to be subjected to cross-examination — that being a test of truth. It ought to appear what were his powers of perception — his opportunities of observation — Iris attentiveness in observing — the strength of his recollection, and his disposition to speak the truth. It supposes [293] better evidence, which might be produced. Besides, it is intrinsically weak and incompetent to satisfy the mind.
There are, however, some exceptions to the rulo, that hearsay evidence must be excluded. Proof ofpedigree is one. Evidence by hearsay, to prove pedigree, is restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore, interested in the succession in question. 13 Vesey, 140, 147. Cowp. 591. 13 Vesey, 514. 2 Bing. 86. 2 Russ. & My. 147, 156. 1 Crowp. Mees, & Ros. R. 919, 928. 17 Peters, 213. 18 Johns. 37. 2 Conn. 347. 4 N. Hamp. 371.
It is admitted, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connexions of the family. It is not pretended that this case is within this exception. Another exception is, where declarations are admitted as being part of the res gestee. These are, however, according to Mr. Greenleaf, rather in the light of original evidence; and he enumerates some other apparent exceptions, which he regards in the same light. There are other exceptions — such, for example, as relate to matters of public and general interest — as a claim of highway, or a right to a ferry. Reputation, as to these matters, is admitted upon the ground of the interest which all have in its truth, and the consequent probability that it is true. 1 Greenleaf, 157.
In this case, there is no public matter involved. It is a question which affects only the parties litigant — it does not fall within this exception. Another exception relates to ancient possession, and ancient boundaries ; another to the declarations and entries of deceased persons, against the interest of the persons making them; another, to dying declarations ; another to the testimony of witnesses dead, absent or disqualified; not one of which embraces reputation as to insanity. This case is therefore subject to the general rules, and by them, in the judgment of this Court, the evidence was improperly admitted.
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By the Court.
Nisbet, J.
delivering the opinion.
[291] [1.] The defendant in this case relied upon a bill of sale from the plaintiff’s intestate. The plaintiff attacked that bill of sale upon two grounds, to-wit: the insanity of the maker, his intestate, and undue and improper influence exerted upon him, amounting to moral coercion, by Foster, the defendant. Upon the trial, Judge Hill permitted the plaintiff to prove the insanity of the intestate, by giving in evidence the public opinion and reputation of the neighborhood, in relation to his insanity. Such testimony, for example, as this: “ he was esteemed an idiot in Oglethorpe County.” Exception was taken to the admission of this evidence, at the trial. We think the Circuit Judge erred in admitting it.
Insanity may be proven, by the proof of facts and circumstances, which show the state and condition of the mind. “ The state and condition of the mind (says Prof. Greenleaf) of the party, is proved like other facts, to the Jury.” Insanity, a state or condition of the mind which renders a party incapable of contracting, and which, when proven, annuls a contract, is demonstrable by facts and circumstances, which show it to exist — such as his acts, his sayings, and his appearance. The best evidence of which the nature of the case is susceptible, must in all cases be adduced. The best evidence to prove insanity is proof of the facts and circumstances which demonstrate its existence. These facts and circumstances,must be proven by the production of witnesses to testify to them. They are capable of proof, as are any other facts or circumstances, which are required to be proven, and upon which the rights of parties depend in a Court of justice. The highest and best evidence in this case, is the testinjony of persons who, from their own knowledge, will swear to their existence.
Public opinion, as to a man’s insanity, is hearsay evidence. One swearing to the existence of such opinion or reputation, swears only to what he has heard from others — from a whole community, if you please. He swears to tío facts which show to the Jury the state or condition of the party’s mind. He swears to what others have said. From such testimony, the Jury who are to try the question of sanity, derive nothing upon which to base a judgment of their own. If, upon such evidence, they were allowed to find a verdict, it would be predicated alone upon the opinion of other men, not expressed to them, not upon oath, not subject to cross examination, and communicated through one who may have erroneously conceived it, or presented it, or who may [292] himself be prejudiced by it. He is not guilty of perjury if the party be ever so sane. He is testifying only to the existence of a public opinion — a thing very difficult to define — which may be one thing to-day and another to-morrow — which may exist without reason, or facts, or knowledge, and may be changed in a week without reason or cause. And in addition to all this, the witness who is sworn, is the judge of what is public opinion or reputation, and that too, under circumstances which relieve him of much of that responsibility which ordinarily attaches to the delivery of testimony on oath.
“If,” says BuTler, “the first speech were without oath, another oath that there was such speech, makes it no more than a bare speaking, and so of no value in a Court of Justice.” BuTler, N. P. 294. And that is all that can be said of it. Against all such testimony, the law sets its face as a flint. “Hearsay evidence is uniformly held incompetent to establish any specific fact, which in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge.” 1 Greenl. sec. 99. Now, insanity, if not a specific fact, is a state or condition of the mind. And as men cannot see, touch, hear, and with omniscient ken, determine the state or condition of the mind — as intuition cannot establish it — they are left to ascertain it, by facts and circumstances. And when it becomes necessary for a Jury to determine it, they too are to judge through facts and circumstances; and the facts and circumstances upon which they are to place their judgment, must be presented to them by witnesses under oath. If reputation of insanity is competent, then reputation of sanity must be also. By this kind of evidence a fool may be proved a wise man, and a philosopher a fool. Public opinion declared Copernicus a fool, when he promulgated the planetary system; and Columibus a fool when he announced the sublime idea of a New World. Hazardous in the extreme would it be to the rights of parties under the law, if they were allowed to depend upon the opinion of a neighborhood of the sanity of individuals. Hearsay evidence is excluded, because a witness ought to be subjected to cross-examination — that being a test of truth. It ought to appear what were his powers of perception — his opportunities of observation — Iris attentiveness in observing — the strength of his recollection, and his disposition to speak the truth. It supposes [293] better evidence, which might be produced. Besides, it is intrinsically weak and incompetent to satisfy the mind.
There are, however, some exceptions to the rulo, that hearsay evidence must be excluded. Proof ofpedigree is one. Evidence by hearsay, to prove pedigree, is restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore, interested in the succession in question. 13 Vesey, 140, 147. Cowp. 591. 13 Vesey, 514. 2 Bing. 86. 2 Russ. & My. 147, 156. 1 Crowp. Mees, & Ros. R. 919, 928. 17 Peters, 213. 18 Johns. 37. 2 Conn. 347. 4 N. Hamp. 371.
It is admitted, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connexions of the family. It is not pretended that this case is within this exception. Another exception is, where declarations are admitted as being part of the res gestee. These are, however, according to Mr. Greenleaf, rather in the light of original evidence; and he enumerates some other apparent exceptions, which he regards in the same light. There are other exceptions — such, for example, as relate to matters of public and general interest — as a claim of highway, or a right to a ferry. Reputation, as to these matters, is admitted upon the ground of the interest which all have in its truth, and the consequent probability that it is true. 1 Greenleaf, 157.
In this case, there is no public matter involved. It is a question which affects only the parties litigant — it does not fall within this exception. Another exception relates to ancient possession, and ancient boundaries ; another to the declarations and entries of deceased persons, against the interest of the persons making them; another, to dying declarations ; another to the testimony of witnesses dead, absent or disqualified; not one of which embraces reputation as to insanity. This case is therefore subject to the general rules, and by them, in the judgment of this Court, the evidence was improperly admitted.
In the case of Potts’ will, argued at this term of this Court, we held that the opinion of a witness, as to the sanity of the testator, was not admissible, unless he states the facts upon which his opinion is formed. If the opinion of a sworn witness in open Court is inadmissible, a fortiori, the opinions of men not being on oath, as testified to in Court, are inadmissible. ( Which case see post.)
It was insisted»by the counsel for the defendant in error, that if [294] we should believe that the Court erred in admitting this evidence, yet this case ought not to be remanded for a new trial, because, wholly independent of the illegal testimony, there was evidence enough before the Jury to authorise their verdict. We have looked into the record, and find that the evidence as to the sanity of the plaintiff’s intestate, is conflicting. When the evidence is conflicting, the case must go back. Only where the evidence will plainly and justly authorise the finding, without the illegal evi-. dence, will we decline to send the case back. It must be a case where we are free from all doubt, that the Jury would have found as they did, had the illegal evidence not been before them. This is not one of those cases. Upon the question of insanity, it is impossible for us to say that the illegal testimony had no effect upon the mind of the Jury. There is a good deal of evidence going to prove the sanity of the intestate of the plaintiff. Nor is it clear to our minds, that excluding altogether the issue of insanity, the Jury would have been compelled, to find for the plaintiff below, upon the other issue of fraud by undue influence. Upon both issues taken together, it is still more doubtful whether the Jury would have been constrained to find as they did, without the illegal evidence. We think it may have had its effect on the Jury in reference to both issues. The question of mental vigor is involved in the question of fraud, since it is easier to influence unduly and fraudulently, a weak than a strong minded man. Were we the Jury, we might have found as the Jury did find. But that is not the question.' The exception to the testimony, too, was taken on the trial. It is not, therefore, a question, how far we will control the discretion of the Court, in refusing or granting a new trial. The case must go back.
[2.] The other points made, grew out of a rule for a new trial. It is claimed that the Court erred in instructing the Jury, that if they found for the plaintiff, the form of their verdict should be in the alternative, finding so much money for the plaintiff, to be discharged by the, delivery of the property within a certain time. The Jury found for the plaintiff a sum in damages, which might be discharged by the delivery of the negroes within a specified time. Thus, we are called upon to say, whether we will change the form of the verdict in trover, which has been used in our Courts, so far as I know1, since the organization of the Government. Our Courts have held, not that the verdict should be, in all ca[295] ses, in what is usually called the’ alternative, butthatit is competent for the Jury to findin that form, or not, accordingtothe circumstances of the case. The verdicts thus rendered, are not strictly in the alternative ; they are verdicts, generally, for damages, with a condition in favor of the defendant, that ho may, if he will, discharge them, by delivering the property sued for ; they go upon an idea favorable to the defendant; they give him the privilege, if most convenient or most beneficial to him, of discharging the verdict by a surrender of the property. It is true, too, that such a form may be used to favor plaintiffs. There are cases where he wants the specific property, and would not feel compensated for its loss in any amount of damages. As for example, in case of a suit brought for an ancient piece of family plate, or for a peculiarly valuable and attached servant. In such case, this form enables the Court and Jury to coerce the delivery of the property, by finding against the defendant, excessive damages. And thus, trover is made to subserve the purposes of the obsolete action of detinue. There is no doubt but that in England the recovery in trover is generally in damages ; the fluctuating value of personal property makes it necessary that it should be; the principles upon which the action is founded, require it; yet, in England, it has been ruled that, where trover is brought for a chattel of unchangeable value, the verdict may be discharged, by surrender into Court of the property. Fisher vs. Price, 3 Burrow, 1363, ’64, ’65. And perhaps this is the source from which sprang the idea, in Georgia, of permitting the damages to be discharged by a delivery of the property. We think the practice a good one. Our people and the profession are familiar with it, and we have reason to believe, satisfied with it. It has rested for many years under the eye of the Legislature, and they have not thought proper to change it, but in several instances have impliedly sanctioned it. We do not see that there is in it any principle violated, or rule of expediency infringed, and we shall not disturb it.
[3.] The plaintiff in error claims that the Court erred in charging the Jury, that if they should find for the plaintiff, they should estimate the value of the property at the highest price proven. The reason given by the presiding Judge for this instruction is, the discharge of the verdict by the return of the property.
In this case, the witnesses varied in their judgment of the value of the negroes — some proving a higher value than others. The [296] question made here, is not what is the criterion of damages, where the value fluctuates from the conversion to the trial. Whether the value, at the time of conversion, or at some intermediate time between the conversion and the trial, or at the trial, or an average value, derived from the different valuations, be the rule, we express no opinion. AVhen the property is of an undeviating value, what is proven to be its worth when converted, seems to be the criterion of damages. What it is when the property is proven to be worth different prices at different times, I say, we express no opinion.